The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) dealt with the complaints of two applicants for international protection, who accused the Ministry of the Interior (MNZ) of violating their rights because, based on the Dublin Regulation[1], it tried to extradite them to other EU member states (Croatia and Bulgaria), although the administrative dispute has not yet been finally decided on in regard to their requests for a temporary injunction, with which they wanted to prevent the extradition. In the first case, the attempted extradition occurred while the complainant was awaiting a decision on his appeal against the rejection of a request for a temporary injunction, and in the second, when the complainant was awaiting a decision on a request for a temporary injunction, which he had filed for the first time only before Courts of Appeal. After examining the issue in question, the Ombudsman concluded both initiatives as well-founded and, based on the finding that the Ministry does the same in other similar cases, recommended a change in practice.
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In response to the Ombudsman's inquiry, the MNZ justified its decision to extradite the applicants by citing the fact that, according to Paragraph 3 of Article 70 of the International Protection Act (ZMZ-1), the lawsuit does not delay the execution of the decision under the Dublin Regulation (hereon: Dublin Decision), and that the execution of the decision is not delayed even by an appeal against the judgment of the Administrative Court of the Republic of Slovenia (Administrative Court) and that according to Paragraph 6 of Article 32 of the Administrative Dispute Act (ZUS-1) the appeal does not delay the execution of the temporary order. In addition, the MNZ explained that, regardless of the above, it has never extradited an applicant to the responsible member state before the Administrative Court's decision on the lawsuit and the request for a temporary injunction. If the Administrative Court rejects the lawsuit and the issuance of a temporary injunction, the extradition of the applicant to the responsible member state is carried out, if the applicant is still present on the territory of the Republic of Slovenia at that time. Often, despite the fact that extradition has been agreed upon between the two countries, it is not actually carried out because the applicants leave the Asylum Centre arbitrarily.
After examining the issue in question, the Ombudsman submitted his opinion to the Ministry, as presented below.
1. The Ombudsman agreed with the practice of the MNZ, according to which it does not in any case extradite the applicant to the responsible member state before the decision of the Administrative Court on the request for suspension of execution by means of a temporary injunction.
The duty of the MNZ to act in this way stems from the judicial practice of Slovenian courts, primarily from the judgment of the Supreme Court of the Republic of Slovenia (Supreme Court) no. I Up 63/2011 of 17/2/ 2011, in which it is explained (similarly to the related first-instance decision of the Administrative Court no. I U 1929/2010 of 29/12/2010) that:
“… the defendant, taking into account all the circumstances of the case under consideration (that they were informed about the lawsuit and the submitted proposal for issuing a temporary injunction before extradition) by handing the plaintiff over to the Republic of Croatia, without waiting for a decision on the plaintiff's lawsuit and the proposal for issuing a temporary order, violated the plaintiff's constitutional rights to effective judicial protection and legal remedies from Articles 23 and 25 of the Constitution of the Republic of Slovenia.”
The above-mentioned decisions of the Supreme Court and the Administrative Court were issued in the case where the plaintiff was returned on the basis of the safe third country institute, but the cited position also applies mutatis mutandis to cases where the plaintiff files a request for a temporary injunction against extradition under the Dublin Regulation. This is explicitly derived from the decisions of the Administrative Court nos. I U 875/2014 of 28/5/2014 and I U 1196/2014 of 25/7/2014.
The obligation of the competent authorities to wait for the decision of the Administrative Court on the temporary order by executing the Dublin Decision directly follows from the Dublin Regulation itself, which in Paragraph 3(c) of Article 27 (implemented by Slovenia among the three alternative options) states that: “Member States shall ensure that an effective legal remedy is available by postponing extradition pending a decision on the first request for postponement.”
Last but not least, the obligation in question also derives from the jurisprudence of the European Court of Human Rights (ECHR), according to which a legal remedy against a decision that may affect the protection of the right from Article 3 of the European Convention on the Protection of Human Rights (ECHR) must have an automatic suspensive effect. It can be understood from the judgments of the ECHR[2] that either the lawsuit itself or the request for issuing a temporary injunction on the postponement of execution must have such an effect.
2. The Ombudsman further concluded that the MNZ should postpone the execution of the Dublin Decision in all cases, not only until the decision of the first-instance court, but until the finality of the decision on the temporary order, i.e. until the decision of the Supreme Court on the appeal according to Paragraph 6 of Article 32 of the ZUS-1.
In its decision no. I U 921/2012 of 4/7/2012, warning that this obligation also derives from the above-mentioned judgment of the Supreme Court no. I Up 63/2011 (emphasis added by the Ombudsman):
“In administrative-judicial practice, namely, from the position described in the judgment of the Supreme Court in case I Up 63/2011 of 17/2/2011, it applies that the defendant may not execute the contested act if a legal remedy has been filed against the contested act in the form of a request for extradition temporary injunction to the court before the court decides on the request for the issuance of a temporary injunction. Therefore, the defendant may not execute the contested act until receiving the decision of the first-instance court on the request for the issuance of a temporary injunction; however, if the party files an appeal with the Supreme Court against the negative decision on the temporary injunction within three days of receiving the decision of the first instance court, the defendant must even in this case wait for the Supreme Court's decision on the appeal against the decision on refusal or dismissal of the request for the issuance of a temporary injunction.”
The Ombudsman adds to the stated position that the Dublin Regulation does not require a two-stage decision on a temporary injunction, but Slovenia has established in its legislation the possibility of an appeal against a negative first-instance decision of the court on a temporary injunction,[3] hence this legal remedy must – just like all remedies – be effective. If the competent authority already transfers the plaintiff to another member state before the decision on the appeal referred to in Paragraph 6 of Article 32 of the ZUS-1, then, in the Ombudsman's opinion, this nullifies the purpose of the appeal and cannot be considered an effective legal remedy. Namely, the purpose of the institute of a temporary injunction is precisely to prevent the execution of an administrative act.
The Ombudsman also considered the question of whether the appeal from Paragraph 6 of Article 32 of the ZUS-1, according to the current practice of the MNZ, when the appeal does not delay the extradition of the plaintiff, may still be considered an effective remedy in view of the provision of Paragraph 3 of Article 29 of the Dublin Regulation. Said provision states that the member state which carried out the extradition must immediately re-admit the individual, if he or she only succeeded in using a legal remedy after the extradition had been carried out. In the Ombudsman's opinion, even this kind of possibility of readmitting a person to Slovenia does not affect the above-presented point of view about the ineffectiveness of the appeal. In accordance with Paragraph 2 of Article 32 of the ZUS-1, the purpose of the institute of a temporary injunction is to prevent the occurrence of damage that is difficult to repair. The Ombudsman, however, notes that extradition could cause damage that is difficult to repair, even if the applicant is later returned to Slovenia based on Paragraph 3 of Article 29 of the Dublin Regulation. Such damage can be caused to him or her by the very extradition and a certain period of stay in another member state, where their rights are threatened in one way or another.
Finally, it is worth noting that the risk of causing difficult-to-repair damage to which an individual may be exposed through extradition, according to the Ombudsman, is also not proportionate to the public interest, which is allegedly pursued when an attempt is made to extradite an individual to another member state even before the decision of the Supreme Court. In accordance with Paragraph 6 of Article 32 of the ZUS-1, the Supreme Court must decide on the appeal within 15 days at the latest, and it is therefore a relatively short period of extension of an individual's stay in Slovenia.
3. The Ombudsman believes that the MNZ should also wait for the decision on the temporary order in the case of the second complainant.
In his case, the authorised person requested the postponement of the execution of the Dublin Decision only after filing an appeal against the rejection of the lawsuit. However, in accordance with Article 32 of the ZUS-1, the plaintiff can file a request for a temporary injunction at any time until the final decision on the lawsuit is issued, so the Ombudsman sees no reason why the findings from sections 1 and 2 should not also apply to the second complainant.
The Ombudsman informed the MNZ that, in accordance with the aforementioned, he considered the complaints to be well-founded. According to the statements in the complaints and the explanation received from the MNZ, according to the current practice, the Ministry does not wait for the finality of the court's decision on the temporary order, but starts to extradite the foreigner according to the Dublin Regulation after receiving the rejection verdict of the Administrative Court. From the explanations of the MNZ, it appears that in the last year there were no extraditions in such cases, because the foreigners had already left the Asylum Centre arbitrarily before that. However, the above should not be understood as the fact that the practice in question did not have a negative effect on the persons concerned, as it is reasonable to assume that in many such cases the arbitrary departures occurred precisely because of the fear of the announced extradition under the Dublin Regulation.
The Ombudsman added that, based on the available information on the treatment of asylum seekers in Croatia and Bulgaria[4], the complainants' claims about the danger they would be exposed to by extradition should not be considered clearly unfounded. Thus, there is a possibility that due to the actions of the Ministry, the complainants were not only limited in exercising their rights to effective judicial protection and a legal remedy, but also that their right from Article 3 of the ECHR was actually threatened.
In accordance with all the findings presented, the Ombudsman recommended to the MNZ to change its practice by postponing the extradition of foreigners to other countries in all cases until the finality of the decision on the request for a temporary injunction from Paragraph 2 of Article 32 of the ZUS-1.
In response to the Ombudsman's opinion, the MNZ stated that it cannot agree with it and will continue to try to carry out extraditions under the Dublin Regulation as it has been doing until now, while at the same time emphasising that in practice no extradition has yet been carried out before the final decision on the temporary order. It justified its position by citing the fact that nowhere does the judgment of the Supreme Court no. I Up 63/2011 of 17/02/2011 directly stipulate that the defendant should await the decision of the Supreme Court on the appeal against the decision to reject or discard the request for the issuance of a temporary injunction, but it is simply an interpretation of said judgment by the Administrative Court. The MNZ once again drew attention to Paragraph 5 of Article 32 of the ZUS-1, which, among other things, stipulates that an appeal does not suspend the issued temporary injunction, and expressed the opinion that, as a result, the appeal against the decision to reject the request for the issuance of a temporary injunction should not have the effect of suspension. In addition, the MNZ expressed its disagreement with the Ombudsman's point of view on the occurrence of damage that is difficult to repair just by the extradition itself and a certain period of stay in another member state, and in this regard warned that in the case of Dublin procedures we are not talking about extradition to a third country, but extradition to a state which is a member of the EU. In this regard, the MNZ also drew attention to the position of the Supreme Court from Paragraph 19 of decision no. I Up 1/2018 from 1/12/2018.
The Ombudsman examined the Ministry's argumentation carefully and informed the MNZ that, even after this, he fully stands by his conclusions and recommendations. 7.3-11/2022, 7.3-12/2022
Recommendation:[5] In all cases, the MNZ should postpone the transfer of foreigners to other countries until the decision on the request for a temporary injunction from Paragraph 2 of Article 32 of the ZUS-1 becomes final.
[1] Regulation no. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.
[2] Judgements in cases M. S. S. versus Belgium and Greece, A. C. and others versus Spain, and Josef versus Belgium.
[3] There are no obstacles to this kind of higher standard (additional legal remedy) in EU law, as this is allowed by the principle of procedural autonomy of the member states from Article 19 of the EU Treaty.
[4] Concerning Croatia e.g. “The Regional Administrative Court of Stuttgart, in proceedings for interim relief, annulled a Dublin transfer to Croatia due to deficiencies of the asylum procedure and risk of refoulement”, accessible at: https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=2924,
and concerning Bulgaria e.g. AIDA Country Report, 2021 Update, accessible at: https://asylumineurope.org/wp-content/uploads/2022/02/AIDA-BG_2021update.pdf.
[5] New recommendation.
