Slovenia, Administrative Court of the Republic of Slovenia, 4 May 2016 I U 645/2016

Identification of the case

• Articles 54, 55 International Protection Act
• Article 64(1), 64(3), 64(4) of the Administrative Dispute

• Articles 14(2), 15, 16, 25/6(a) Procedures Directive

Summary of the case

The Asylum authority rejected an asylum application of an unaccompanied minor in accelerated procedure, as manifestly unfounded, without personal hearing. According to the Asylum authority, the submission of the asylum application - the questions asked and the answers given by the applicant - were made in such a way that the procedural guarantees regarding the personal interview in the Procedures Directive were sufficiently respected. In his appeal, the Applicant criticized the use of the accelerated procedure in cases of unaccompanied minors, which is contrary to the Recast Procedures Directive, Article 25(6) and the omission of a personal interview, which is also inconsistent with the Recast Procedures Directive. The Applicant also complained that the Asylum authority did not undisputedly establish that his actual nationality is Pakistani. The Applicant stated that he does not know his nationality and that he was born in Afghanistan. The Applicant also alleged an incorrect assessment of his entitlement to subsidiary protection. The Asylum authority assessed the security situation in Pakistan, although it has not been established that the Applicant has a Pakistani nationality. If it turns out that he has Afghan nationality, the security situation assessment should have been carried out for Kabul, where the Applicant would most likely be returned. Finally, the Applicant emphasized that when returning a minor, it is necessary to check whether suitable reception and care will be provided upon return.

• Administrative judicial enforcement

annulment of the administrative decision, referral of the case back to the Asylum authority

The Court agreed with the Applicant that the Asylum authority had violated the rules of the procedure because it decided in an accelerated procedure. The International Protection Act (IPA) does not have special rules on the applicability of the accelerated procedure in cases of unaccompanied minors, which is contrary to the Procedures Directive, which in Article 25(6) provides that in the case of an unaccompanied minor, the provisions on an accelerated procedure can be applied only under certain circumstances. Where the Directive has not been implemented within a specified period, the CJEU developed the principle of coherent interpretation; it imposed on national authorities an obligation to have a consistent interpretation (interpretation of national law in the light of the objectives of the directive, but not contra legem). If this is not possible, the CJEU permits in its practice the direct effect of directives - the provisions of the directive can be applied instead of the conflicting national law if they are clear, unconditional, do not require implementing measures and leave no discretion to the Member States. In the light of the above, in the present case, the provision of Article 25(6) of Procedures Directives should be taken into account and since none of the conditions that would justify the omission of the interview were met, the Asylum authority could only decide on the Applicant's application in a regular procedure. The Court continues that even if the Asylum authority could decide in an accelerated procedure, it could not omit a personal interview. Article 14(2) of Procedures Directive prescribes situations where the personal interview could be omitted and those situations are not applicable in the present case. The argument of the Asylum authority that the submission of the application can be regarded as a personal interview satisfying conditions from the Procedures Directive can also be rejected, since the Asylum authority simply accepted the fact that the Applicant stated that he does not know which nationality he has and did not ask further questions. According to Article 16 of the Procedures Directives, the applicant must be given an adequate opportunity to present elements needed to substantiate the application in accordance with Article 4 of Directive 2011/95/EU as completely as possible. This shall include the opportunity to give an explanation regarding elements which may be missing and/or any inconsistencies or contradictions in the applicant’s statements. In this context, the personal interview in the proceedings could not be omitted, since the Asylum authority would have to determine the facts and circumstances in order to establish the Applicant’s citizenship, because this is important for the decision.

Role of the Charter and role of the general principles on enforcement

The Charter was not found to be applicable.

• Right of every person to be heard, before any individual measure which would affect him or her adversely is taken
• Explicit reference to Art. 6 ECHR
• Explicit reference to Art. 13 ECHR

The case does not really speak about the right to be heard as a fundamental right, it only derives this right from the Procedures directive.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• C-378/07, Angelidaki and o.
• C-243/09, Günter Fuß v Stadt Halle

Conform interpretation with EU law as interpreted by the CJEU. Disapplication of national law in favor of EU law.

To show that provision of the directive can be directly applicable in case of lack of implementation of the directive in the national law.

Additional notes on the decision

The same month amended International Protection Act entered into force and now the provisions of the Procedures Directive regarding the omission of personal interview are correctly transposed. But it cannot be claimed that this is the result of this judgement, since the amendments were drafted before the judgement was issued.