Author
In early 2017, Slovenia adopted amendments to the Foreigners Act which allowed for future restrictions on access to the asylum procedure. Pursuant to the amendments, the National Assembly (Parliament) could vote on suspending the right to asylum and the Police would be able to reject all intentions to apply for international protection as inadmissible as well as remove the individuals concerned to the country from which they entered Slovenia.[1] The adopted amendments were reviewed by the Constitutional Court at the initiative of the Slovenian Human Rights Ombudsperson, prepared with support from civil society organisations.[2] The Constitutional Court ruled that the amendments were in breach of Article 18 of the Constitution (prohibition of torture).[3]
Nevertheless, in 2021, the National Assembly accepted the amendments to the Foreigners Act that established the concept of a “complex crisis in the field of migration”. In line with the new provisions, the Ministry of the Interior regularly monitors the situation in the field of migration in Slovenia. If it detects that the situation regarding migration in Slovenia has changed, creating a “complex crisis”, the Ministry can propose that the government activates the articles of the Foreigners Act that allow the National Assembly to close the border for six months and restrict access to the asylum procedure. The proposal to activate the articles must involve an assessment of the situation and the effects of the “complex crisis” on the security threat level for the protection of fundamental constitutional social values, especially regarding the effective functioning of the legal and welfare state, the protection of public order and peace, the efficient functioning of the economy, the protection of health and the life of the population, and the level of security.[4]
Upon activation of the articles the police would have the authority to determine whether a person can apply for international protection after they express the intention to do so. If the police determine that an individual can be returned to another country, they can return the individual regardless of the provisions of the IPA. Exceptions would apply to unaccompanied minors and individuals whose health conditions prevent a return. The assessment of whether someone is an unaccompanied minor would be made by the police based on the person’s appearance, behaviour and other circumstances. An appeal against the police order would not have a suspensive effect.[5] In 2023, the amended provisions of the Foreigners Act were not yet activated.
The Slovenian Human Rights Ombudsperson notified the European Commission of the newly adopted provisions and his position regarding the provisions. The Ombudsperson emphasized that the Government proceeded with the adoption of the amended provisions in disregard of the decision of the Constitutional Court, thereby casting doubt as to the effectiveness of potential other procedures before the latter.[6] The Directorate-General for Migration and Home Affairs of the European Commission (DG HOME) informed the Ombudsperson that it was conducting a careful preliminary analysis of the situation, which was raising complex questions regarding border control, police powers, asylum and return in case of a potential migration crisis. DG HOME also noted that it would ask national authorities for further explanation and, if needed, propose the initiation of a procedure to establish human rights violations.[7]
In February 2022, opposition parliamentarians submitted again the provisions to the Constitutional Court for constitutional review.[8] In July 2023, the new Government approved the opinion of the Ministry of the Interior regarding the legality of the amendments and lodged the opinion before the Constitutional Court. In the opinion, the Ministry argued that the amendments of the Foreigners act are in line with the Constitution.[9] The opinion and the procedure in which the opinion was approved by the Government was heavily criticized by the NGOs and the parliamentarians that lodged the Constitutional review and called on the minister to resign.[10] The decision on constitutional review was not taken in 2023. In its fourth periodic review, the U.N. Committee against Torture also recommended that the authorities consider amending or repealing the provisions. The Committee also noted that Slovenia should ensure that effective and appropriate measures based on individualized consideration and vulnerability screening are in place for properly trained immigration officials to identify, as early as possible, all victims of torture, ill-treatment, gender-based violence and trafficking among asylum-seekers and other persons in need of international protection during border procedures, and provide such persons with access to treatment for urgent conditions and with appropriate support.[11]
In June 2022, the Ministry of the Interior announced that Slovenia would remove its border fence with Croatia.[12] The works began in July 2022, however only 4,142 metres of the fence were removed by the middle of September.[13] By the end of 2023, 81 km of wire fence was removed.[14] In October, the Government introduced the border patrols with Italy, Hungary and Croatia,[15] however this did not result in an increased number of readmissions,[16] meaning that the majority of apprehended individuals were processed in the asylum procedure.
Pushbacks, illegal police practices and other incidents at the border
In 2023, the police detected 60,587 irregular crossings of the Slovenian border. This is a 90% increase in comparison to the previous year.
The most common countries of origin of people who were apprehended for irregular border crossing were: Afghanistan (17,825), Morocco (8,859), Pakistan (5,176), Russia (3,631), Bangladesh (3,551), Syria (3,490), Türkiye (3,191), India (1,912), Nepal (1,637), Cuba (1,316) followed by other nationalities.[17] In practice Ukrainians are allowed entry and are not processed for irregular border crossing even if they do not fulfil the entry requirements e.g., a valid passport, which is evident from the statistics.
According to the statistics, 58,757 individuals expressed their intention to apply for international protection. This is an 86,8 % increase from the 31,456 individuals who applied in 2022.[18] In previous years, there was a huge discrepancy between the number of irregular crossings and the number of expressed intentions to apply for international protection due to systematic denial of access to the asylum procedure by the police and subsequent readmission of people to the neighbouring countries from which they entered, mainly Croatia.[19]
Readmission to neighbouring countries was conducted based on readmission agreements Slovenia has with its neighbouring countries – Croatia, Italy, Austria and Hungary. Readmission agreements form a system outside EU law and the CEAS provisions, and do not uphold the standards that these require. The readmission agreements allow the return of migrants in informal procedures in which individuals are not issued a return decision, do not have the right to appeal and do not have the right to free legal aid or representation.[20] The Ombudsperson observed that no assessment of whether the principle of non-refoulement could be violated by a return from Slovenia is conducted.[21] Therefore, there is no possibility for individuals channelled through readmission procedures to argue that they face a risk of violation of the non-refoulement principle, or to challenge the decisions of the police. It is also not evident from the police records if individuals expressed an intention to apply for international protection, and if so, whether the police informed the individual of the right to asylum and how the person responded.[22]
In February 2022, the practice changed and the number of individuals readmitted dropped in comparison with the previous year. Although individuals continued to be readmitted on a monthly basis the number of readmissions continued to drop in comparison with 2021. In 2022, 2,361 individuals were readmitted which is a 41% decrease in comparison to 2021. In 2021, 39% of individuals who irregularly crossed the border were readmitted to a neighbouring country while in 2022, 7.4% of individuals who irregularly entered were readmitted.[23] This decrease can be mainly attributed to the change of practice of the Croatian authorities who in the beginning of 2022 started to refuse to accept readmitted people back to Croatia. In 2023, only 257 individuals were readmitted to another country.[24]
Out of 257 readmitted individuals, 29 were from Albania, 27 were from China, 19 were from Türkiye, 17 were from Syria, 16 were from Kosovo, 15 were from Afghanistan, 15 were from Nepal, 15 were from Serbia, 10 were from Bangladesh and 9 were from Bosnia and Hercegovina. Out of 257, 176 individuals were readmitted to Croatia.[25]
In 2023, Slovenia also readmitted 377 individuals to its territory under readmission agreements. This is a decrease from the 427 individuals it readmitted in 2022. 203 were readmitted through the airport, 96 from Italy, 62 from Austria, 9 from Croatia and 7 from Hungary Out of 377 individuals, 65 were from Afghanistan, 44 from Algeria, 30 from Morocco, 29 from Slovenia, 22 from Türkiye, 21 from Azerbaijan, 17 from Bangladesh, 15 from Syria, 11 from Nepal an 11 from Iran.[26]
In January 2021, the Italian Court of Rome ruled that the 1996 readmission agreement with Slovenia breached Italian and EU law and, therefore, could not form a legal basis for returns to Slovenia.[27] Whereas most readmissions from Italy stopped following this ruling, 65 readmissions took place nonetheless in 2022 according to the official statistics.[28] Reportedly, at the end of 2022, the Italian authorities had started to strongly urge Slovenia to resume the use of readmission agreements between the countries.[29] The pressure from Italian authorities to resume the use of the readmission agreement continued during 2023.[30] In 2023, Slovenia readmitted 96 persons from Italy.[31]
In August 2020, individuals started to report collective expulsions from the Austrian border to Slovenia. The number of people returned based on the readmission agreement[32] between Slovenia and Austria increased from 23 people being returned by the end of July to 98 people being returned by the end of August. A total of 176 people were returned from Austria to Slovenia in 2020.[33] In 2021, 70 persons were readmitted from Austria on the basis of the readmission agreement.[34] Individuals’ testimonies show that some were returned to Croatia by the Slovenian authorities after being readmitted from Italy or Austria.[35] In 2022, 58 individuals were readmitted from Austria to Slovenia. [36] In 2023, 62 were readmitted from Austria to Slovenia. [37]
At the beginning of 2022, the PIC and other organisations in Slovenia regularly detected pushbacks at the Slovenian border.[38] While lodging the application before the Ministry, asylum seekers stated that they have reached and tried to ask for asylum in Slovenia several times before being able to lodge the application for international protection. In February, the practice changed as the Croatian police refused to accept people based on the readmission agreements. Since then, reports on pushbacks and the use of readmission agreements have dropped significantly.
In the second half of 2022, ECCHR together with CRIN filed a complaint in the case of U.F. against Croatia and Slovenia with the Committee on the Rights of the Child. U.F is a Rohingya child who was a victim of a chain pushback from Slovenia to Bosnia.[39]
During the year 2023, the Slovenian Ombudsperson received 7 complaints regarding asylum and migration. The Ombudsperson finished 5 investigations in 2023. The complaints were lodged regarding the short timeframes for judicial review in the return procedure, lengthiness of the asylum procedure, Dublin returns to Croatia and police conduct in the Foreigners centre in Postojna. Regarding the police conduct in the Foreigners centre in Postojna the Ombudsperson did not detect any violations in one case while the other is still pending.[40]
Border monitoring
There is no systematic border monitoring in Slovenia. Border monitoring is conducted by UNHCR. In 2023 UNHCR conducted 11 visits to police stations and 1 visit to the airport where they checked police records and conducted talks with the police.[41] In order to conduct border monitoring, UNHCR must notify the police station prior to the visit. UNHCR can only check police documentation regarding individuals who applied for international protection.
Border monitoring is also conducted by the Slovenian Ombudsperson within the National Preventive Mechanism framework.[42] The Ombudsperson can make unannounced visits to police stations and has the authority to check all the police records regarding migrants in the police procedures. Based on these visits, observations and recommendations are given to the Ministry of the Interior and the police station. In 2023, the Ombudsperson visited 17 police stations. In 2023, the Ombudsman highlighted the extremely poor reception conditions at the Police station for Compensatory Measures Novo mesto, where the majority of individuals irregularly crossing the border is processed. The Ombudsman noted that the hall in which individuals are processed and accommodated, before being transferred to the asylum home, is dysfunctional and extremely inappropriate considering that a large number of foreigners is processed there and that they stay there for a long period of time (from 5-6 hours). The Ombudsman noted that the structure of the hall does not guarantee respect for personal safety and human dignity, especially for vulnerable groups, families with small children and unaccompanied children. The premises are also not adapted to the needs of people with mobility impairments. During the visit the premises were not sufficiently cleaned or regularly disinfected. The hall is equipped with air conditioning but does not ensure adequate ventilation as the air in the room when a large number of people is accommodated is very poor. There is also a risk of the spread of infectious diseases. Unaccompanied children are accommodated together with other foreigners.[43] In January 2023, the Government adopted the decision to install additional temporary facilities on the premises for the purpose of processing foreigners. The additional facilities will be installed for maximum 3 years. In the first phase, the fence and 2 sanitary containers will be built. In addition, 3 containers for accommodation and 3 tents will be installed. In the second and third phase, additional 2 tents will be built while additional sanitary containers will be installed if needed.[44] According to the police, 3 containers that are already installed but were not yet operating during the Ombudsman’s visit will be used for accommodating vulnerable groups, including unaccompanied children. The Ombudsman noted that such accommodation is inappropriate for vulnerable groups and recommended that suitable facilities for processing vulnerable groups are established.[45]
Litigation and case-law on incidents occurring at the border
In 2019, the Administrative Court of Slovenia issued its judgement in the case of a Moroccan citizen who applied for international protection in Slovenia and was rejected. Upon completion of the asylum procedure, he was returned to Croatia under a bilateral readmission agreement, and subsequently to Bosnia and Herzegovina. The applicant started a subsidiary judicial procedure by filing a complaint before the Slovenian Administrative Court alleging a violation of his human rights. The Administrative Court ruled that the applicant had not been able to object to his return based on the prohibition of non-refoulement, and did not have an effective legal remedy, since he was not issued a written decision.[46] The Ministry of the Interior appealed against this decision to the Supreme Court,[47] which found that the fact that a written decision was not issued was not unlawful. The case was referred to the Constitutional Court on the initiative of the Ombudsperson. The case was dismissed in December 2021 because the time limit for constitutional review had expired.[48]
In 2020, the Administrative Court confirmed its position in a case concerning a Cameroonian national who had crossed the Slovenian border in August 2019 with the intention of applying for asylum in Slovenia. The applicant claimed that he had expressed his intention to apply for international protection several times during the police procedure. The police did not register his intention and did not refer him to the preliminary procedure. Instead, he was taken to the Croatian border and returned to Croatia on the basis of the readmission agreement. The Croatian police then returned him to Bosnia and Herzegovina. The Administrative Court found that the police had violated the prohibition of non-refoulement, the prohibition of collective expulsion, and the right to access the asylum procedure by returning the applicant to Croatia on the basis of the readmission agreement. It also decided that Slovenia should allow the applicant to enter the territory and apply for international protection, and that the applicant should be awarded €5,000 in compensation.[49] The decision was annulled by the Supreme Court and returned to the Administrative Court.[50] The Administrative Court decided again that the Slovenian authorities had violated the prohibition of non-refoulment, the prohibition of collective expulsion and the applicant’s right to access the asylum procedure, however it did not award any compensation, in line with the instructions of the Supreme Court, as this would significantly prolong the procedure. Instead, it referred the plaintiff to litigation before the civil court.[51] The Ministry of the Interior appealed the decision to the Supreme Court, which eventually confirmed the decision of the Administrative Court, which thus became final.[52]
In July 2021, a case concerning three Moroccan nationals came before the Administrative Court. The applicants had crossed the Slovenian border in July 2021, after which they were apprehended by the police for irregular border crossing. During the police procedure they repeatedly asked for asylum in Slovenia. The police did not register their intention to apply for international protection and did not refer them to the preliminary procedure. Instead, they were taken to the Croatian border and returned to Croatia on the basis of the readmission agreement. The Croatian police took them to the border with Bosnia and Herzegovina and forced them to cross the border on their own. By the end of 2023, a decision had not yet been made by the Administrative Court.[53]
In August 2023, the Administrative Court made the decision in a case of a Syrian national who entered Slovenia, for the second time, in October 2019. He entered Slovenia in a group of 12 persons and expressed the intention to apply for asylum in Slovenia. The next day, Slovenian authorities readmitted the applicant, together with other members of the group, to Croatia. Croatian authorities took the applicant to the border with Bosnia and Hercegovina and ordered him to cross the border. The court found that during the procedure the applicant managed to prove that he indeed expressed the intention for asylum in Slovenia. The Ministry of the Interior failed to prove that the intention was not overheard by the police as the procedure was not properly documented, a translator was not present during the procedure and the reports from several NGOs and the Slovenian Ombudsperson stated that, at the time, access to asylum was systematically denied to individuals during the police procedure. The Administrative Court found that, by readmitting the applicant to Croatia and preventing him to apply for asylum in Slovenia, the authorities violated the principle of non-refoulment, right to asylum, prohibition of collective expulsion, right to judicial review and the right to be heard.[54]
The PIC did not detect any systematic physical or psychological violence conducted by the Slovenian national authorities or acts that amounted to disrespectful or insulting treatment.
Legal access to the territory
The Slovenian legislation does not foresee any legal pathways, apart from family reunification, for access to the territory of persons in need of protection (for example as humanitarian visas.) Strengthening the system of complementary pathways is set as one of the objectives of the new Immigration strategy adopted by the Government in March 2024.[55]
In October 2022 the Slovenian Government made the decision to resettle 50 persons from Türkiye. People from Afghanistan and Syria were eligible for resettlement according to the decision of the Government.[56] Based on the decision 23 persons resettled in Slovenia in 2023 and, 27 persons resettled in Slovenia in January 2024.[57] Relocation has not been carried out since 2021.
[1] For more on the amendments see AIDA, Country Report Slovenia – 2021 Update: Access to territory and pushbacks, May 2022, available at: https://bit.ly/3kCs3cg.
[2] See also Council of Europe Commissioner for Human Rights, Slovenia: Commissioner concerned about adoption of amendments to Aliens Act that violate human rights’ 27 January 2017, available at: http://bit.ly/2kA52Xw.
[3] Constitutional Court, Application No U-I-59/17, 18 September 2019, available at: https://bit.ly/2TUCkz5. For more information on the Constitutional Court decision, see AIDA, Country Report: Slovenia, 2021 Update, May 2022, available at: https://bit.ly/3kCs3cg.
[4] Article 10a Foreigners Act.
[5] Article 10a and 10b of the Foreigners Act.
[6] Varuh človekovih pravic, Varuh Evropsko komisijo seznanil s svojimi pogledi na novelirano tujsko zakonodajo, 16 August 2021, available in Slovenian at: https://bit.ly/3wEsAwk.
[7] Information provided by the Ombudsperson, March 2023.
[8] N1, ‘Stranke KUL zahtevajo presojo ustavnosti določb zakona o tujcih’, available in Slovenian at: https://bit.ly/39ACEP9.
[9] The lodged opinion is available in Slovene at: https://bit.ly/42rJ0Yw.
[10] MMC: Vlada potrdila Poklukarjevo mnenje, da sta Janševa zakona ustavna. Pozivi k odstopu ministra, 20 July 2023, available at: https://bit.ly/3HJRUXv.
[11] U.N. Committee against Torture: Concluding observations on the fourt periodic report of Slovenia; 7 December 2023, available at: https://bit.ly/3OY4B5k.
[12] Infomigrants, Slovenia to dismantle border fence with Croatia, 10 June 2022, available at: https://bit.ly/49LVhtz.
[13] Ptujinfo, ‘Vse manj žične ograje na meji s Hrvaško, skupaj odstranili okoli štiri kilometre žice’, 18 September 2022, available in Slovenian at: http://bit.ly/3y2Bm8q.
[14] Information provided by the Police, March 2024.
[15] MNZ, Slovenija v soboto ponovno uvaja nadzor na meji s Hrvaško in Madžarsko, 19. 10. 2023, available in Slovenian at: https://bit.ly/3SJCjxm.
[16] Official police statistics, available in Slovenian at: https://bit.ly/3WvTZfq.
[17] Official police statistics available in Slovenian at: http://bit.ly/3WvTZfq .
[18] Ibid.
[19] For more on pushbacks see AIDA, Country Report: Slovenia, 2021 Update, May 2022, available at: https://bit.ly/3kCs3cg.
[20] See for example: Agreement between the Government of RS and the Government of RC on delivery and reception of persons, whose entry or residence is illegal. – International agreements, Official Gazette of RS, no. 8/06., available in English at: https://bit.ly/3vVpHWT.
[21] Ombudsperson, Poročilo Varuha človekovih pravic RS o izvajanju nalog državnega preventivnega mehanizma po Opcijskem protokolu h Konvenciji OZN proti mučenju in drugim krutim, nečloveškim ali poniževalnim kaznim ali ravnanju za leto 2019, available in Slovenian at: https://bit.ly/3SrxVSA
[22] Ibid.
[23] Official statistics available at: http://bit.ly/3WvTZfq.
[24] Ibid.
[25] Official police statistics available in Slovenian at: http://bit.ly/3WvTZfq.
[26] Official police statistics, available in Slovenian at: https://bit.ly/3WvTZfq.
[27] Decision of Ordinary Court of Rome, N.R.G.56420/2020, 18 January 2021, available at: https://bit.ly/3MatUiY.
[28] Official police statistics available at: http://bit.ly/3WvTZfq.
[29] Nuova Europa, Migrants: Prisco, in force readmissions with Slovenia, 6 December 2022, available at: https://bit.ly/41zZA6C.
[30] N1¸Italija zaradi migracij razglasila izredne razmere, Salvini žuga Sloveniji, 11 April 2023, available at: https://bit.ly/48WcoIxDelo: V Italiji izredne razmere, Salvini bi begunce vračal v Slovenijo,11 April 2023, available at: https://bit.ly/3SYsB9h. Dnevnik: Italija za okrepitev sodelovanja s Slovenijo pri reševanju množičnih migracij, 14 January 2023, available at: https://bit.ly/4c5X52a.
[31] Official police statistics available at: http://bit.ly/3WvTZfq.
[32] Readmission agreement between Slovenia and Austria available at: https://bit.ly/3f69msn.
[33] Official police statistics available at: https://bit.ly/3vMfX0T.
[34] Official police statistics available at: https://bit.ly/3vMfX0T.
[35] BVMN, individual testimonies and reports available at: https://bit.ly/3vOZf0M. See also, ECRE, Austria: Chain pushbacks to Bosnia Amid Growing Evidence of Widespread Abuse in the Balkans, 20 November 2020, available at: https://bit.ly/3lyAD7W.
[36] Official police statistics available at: http://bit.ly/3WvTZfq.
[37] Ibid.
[38] Border Violence Monitoring Network, Testimonies, available at: https://bit.ly/3KGLMk0.
[39] ECCHR, Rohingya child challenges Croatia and Slovenia over violent pushbacks, available at: https://bit.ly/3SURUJx. CRIN, The story of U.F. and the campaign to end child pushbacks at EU borders, available at: https://bit.ly/49Oebzx.
[40] Information provided by the Ombudsperson, March 2024.
[41] Information provided by UNHCR, February 2024.
[42] The National Preventive Mechanism operates based on the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
[43] National Preventive Mechanism, Priporočila iz obiskov (preglednice), available at: https://bit.ly/3l6Xhs0.
[44] Dnevnik, Vlada sklenila na območju Obrežja postaviti začasne objekte za obravnavo tujcev, 18 January 2024. available in Slovenian at: https://bit.ly/3uDpfR1.
[45] National Preventive Mechanism, Priporočila iz obiskov (preglednice), available at: https://bit.ly/3l6Xhs0.
[46] Administrative Court, Decision I U 1412/2019, 18 December 2019, available at https://bit.ly/3SN9LSy.
[47] Supreme Court Decision, I Up 21/2020, 8 July 2020, available at: https://bit.ly/49lgZUQ.
[48] Constitutional Court Decision, Up-1114/20, 13 December 2021, available at: https://bit.ly/3uD7126.
[49] Administrative Court, Decision, 1490/2019, 22 June 2020, available at https://bit.ly/48ooWaP.
[50] Supreme Court Decision, I Up 128/2020, 28 October 2020, available at: https://bit.ly/3uCn1BA.
[51] Administrative Court Decision, I U 1686/2020, 7 December 2020, available at https://bit.ly/42HyBrJ.
[52] Supreme Court Decision, I U 1686/2020, 9. April 2021, available at https://bit.ly/4bEKCCf.
[53] Administrative Court, case run under the number I U 1167/2021. A decision was not made at the time of the writing of the report.
[54] Administrative Court Decision, I U 1834/2019, 26 July 2023.
[55] Immigration strategy of the Government of the Republic of Slovenia, March 2024, available at: https://bit.ly/4ayyqlc.
[56] Government of the Republic of Slovenia (2022), Resettlement of 50 citizens of Syria or Afghanistan, eligible for refugee status, from Turkey to Slovenia, 19 October 2022, available in Slovenian at: https://bit.ly/49FVs9f.
[57] Official statistics of Ministry of Interior, available in Slovenian at: https://bit.ly/3ksiZGh.