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In July 2021 the Regional Administrative Court of Styria issued a landmark decision concerning a case of a Moroccan national living in Bosnia. Despite having asked for asylum in September 2020 after crossing the green border from Slovenia to Austria along with a group of other asylum seekers, he was handed over to the Slovenian police based on a readmission agreement who also ignored his claim. He was subsequently returned to Croatia and pushed-back to Bosnia.[1] The Court concluded that the policemen “overheard” the asylum application, i.e. they did not carry out a proper interview; the body search resulted in inhuman treatment and the rejection to Slovenia was unlawful. In the statement of facts, the Court stated that pushbacks are “partly applied as a method in Austria.”[2] The Ministry of Interior denied the fact that an application for international protection had been made and brought in a legal remedy to the High Administrative Court. In 2020, 514 persons from 48 different countries were handed over to Slovenian authorities based on this ad hoc agreement.[3] This agreement originally focused on the uncomplicated return of Slovenian citizens to Slovenia when crossing the border. No formal procedure is known: when a person identified to be returned on the basis of the agreement the police forces of the two countries interact and organise the transfer. There is no legal remedy foreseen in the process. Persons that have applied for asylum cannot be returned on the basis of this agreement.
In July 2021, a Somali minor was also unlawfully returned to Slovenia on the basis of that readmission agreement, despite the fact that he had articulated the words “asylum” various times when talking to police officers. In February 2022, the Regional Administrative Court of Styria decided that the police measures taken were unlawful and resulted in an illegal push back.[4] In Slovenia, the asylum request was meanwhile accepted, and an asylum status had already been granted.[5]
In both cases, the revision requested by the Regional Police Directorate Styria to the High Administrative Court were rejected in May 2022.[6] As a consequence, the Ministry of Interior by non-public internal Decree GZ: 2022-0.344.927, “Awareness with regard to rejections”, 11 May 2022, regulated on how to proceed with foreigners that apply for asylum when apprehended by the police. The decree explicitly states that, just because the person does not mention the word “asylum”, that does not mean they are not applying for international protection, as the application can be brought in by “conclusive action”. The police officer should thus also come to the conclusion that the person is applying for international protection through their behaviour, actions, etc and the police officer should in such case take appropriate action. A mandatory e-learning tool was developed and is available for all officers that are on duty close to border regions.
As a response to the allegations of illegal push backs and unlawful returns taking place at the Southern border to Slovenia and the fact that the number of persons affected by readmissions to Slovenia almost doubled from 81 to 174 in 2020,[7] the initiative “Push back alarm” was founded by activists. Similar to “Alarm phone”, the initiative offers a phone number where persons that crossed the border can request a follow up with the police and ask whether their asylum application is being accepted.[8] From January to November 2021, the number of persons unlawfully returned to Slovenia based on the bilateral readmission agreement decreased to 59.[9] According to the AIDA report on Slovenia, persons who have been summarily returned back from Austria to Slovenia in 2020 were mostly expelled to Croatia by the Slovenian authorities. After the second judgement concerning pushbacks by Regional Administrative Court of Styria there are no more reports of push-backs on Austrian territory.
[1] Prozess Report, „Beschwerden nach Pushback“, availablte in German at: https://bit.ly/3zaZzd9.
[2] Asylkoordination Österreich, „Gericht bestätigt systematische Menschenrechtsverletzungen durch österreichische Polizei”, 5 July 2021, available in German and English at https://bit.ly/3GJF9cy.
[3] Ministry of Interior, Answer to parliamentary request 4277/AB XXVII. GP, 20 January 2021, available in German at: https://bit.ly/2ZpZCA4.
[4] Kurier, „Gericht bestätigt illegalen Pushback von minderjährigem Somali“, 19 February 2022, available in German at: https://bit.ly/3IHJLmv.
[5] Standard, “Wieder dokumentierter Pushback von Österreich nach Slowenien”, 7 September 2021, available in German at https://bit.ly/3GzS54M.
[6] VwGH Ra 2021/21/0274-6, 5 May 2022; VwGH Ra 2022/21/0074-6, 19 May 2022 available in German at: https://bit.ly/3miz1nc.
[7] Slovenian police, Illegalne migracije na obmocju Republike Slovenije, December 2020, available in Slovenian: https://bit.ly/3szYyqe, 4.
[8] Push back Alarm Austria, see: https://bit.ly/3asuo1z.
[9] Slovenian police, Illegalne, migracije na obmocju Republike Sloenije, November 2021, available in Slovenian: https://bit.ly/34qPe1d.