Access to the territory and push backs

Slovenia

Country Report: Access to the territory and push backs Last updated: 30/11/20

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In early 2017, Slovenia adopted amendments to the Aliens Act which allow for a future restriction on access to the asylum procedure. According to the amendments, the National Assembly (Parliament) can vote on suspending the right to asylum in case migration poses “a threat to public order and internal safety in the Republic of Slovenia”. If the parliamentary measure is adopted, the Police is instructed by law to reject all intentions to apply for international protection as inadmissible as long as the persons wishing to apply entered Slovenia from a neighbouring EU Member State in which there are no systemic deficiencies of asylum procedure and reception conditions which could lead to torture, inhuman or degrading treatment. The Police then deports the person back to this neighbouring country. An appeal against the police order does not have a suspensive effect.[1]

The adopted amendments were reviewed by the Constitutional Court at the initiative of the Slovenian Human Rights Ombudsman, prepared with support of the civil society organisations.[2] The Constitutional Court ruled in U-I-59/17 that the amendments were in breach of Article 18 of the Constitution (prohibition of torture).[3] It noted that any legislative restrictions that limit the type and the number of circumstances which can form the basis of the individual’s claim regarding the existence of serious harm in case of return, and which limit the individual’s ability to access the procedure in which such a claim would be assessed, is in violation of the principle of non-refoulment enshrined in Article 18 of the Constitution. The Court also highlighted that the determination of “a threat to public order and internal safety in the Republic of Slovenia” under the Aliens Act did not imply the existence of a state of emergency pursuant to Article 92 of the Constitution, which could justify the limitation of rights.

In May 2018, the media reported allegations of illegal police practices during return procedures of individuals who expressed the intention to apply for international protection from Slovenia to Croatia, and their subsequent return to Bosnia and Herzegovina. At the time of the reports on such practices, PIC observed a sharp decline in the number of newly lodged asylum applications. The change of practice in the processing of individuals in return procedures was also indicated by the statistical data obtained by the authorities. In June 2018, 885 illegal border crossings were recorded,[4] while 652 persons were forcefully returned. According to official statistics, 267 asylum applications were lodged in June.[5] However it has to be noted that on 1 June 2018 there were 92 persons who had arrived in May and were accommodated in the reception area of the Asylum Home and in the reception centre in Logatec, waiting to lodge their asylum application. Therefore, access to the asylum procedure in June was allowed to 175 individuals. Statistical data showed a four-to-fivefold increase in the number of forced returns in June compared to May, when 1,158 illegal crossings were recorded,[6] and 148 individuals were forcefully returned. There were 365 asylum applications lodged in May.

In June 2018, PIC conducted a field visit to Velika Kladuša and Bihać in Bosnia and Herzegovina with the aim of verifying the reports of illegal police practices during return procedures of individuals who expressed the intention for international protection, and published a report of the field visit.[7] On the basis of the interviews conducted with returned people, a thorough examination of the documentation presented to us by the interviewees and on the basis of statistical and other data we received from the police and international and non-governmental organisations, we believe that during the informal return procedures, based on the bilateral readmission agreement between Slovenia and Croatia, in which no written decision is issued and the individual does not have the right to appeal, Slovenia has restricted effective access to the asylum procedure to foreigners that entered Slovenia and hindered their right to asylum:

  • Foreigners have not been appropriately informed about the possibility to apply for international protection and were not included in the preliminary procedure that would enable them to lodge the asylum application (see Registration).
  • Foreigners have not been adequately informed of their rights, obligations and the course of the procedure: they received misleading information from the police, to the effect that they would be processed in the asylum procedure, and were later returned to Croatia without any option to apply for international protection.
  • Persons were also issued a fine for illegal entry onto the state’s territory.
  • Despite the provisions of the Aliens Act that expressly state that unaccompanied children can only be returned in a formal procedure and therefore exclude the return of foreign children on the basis of the bilateral readmission agreement,[8] children were returned to Croatia following an informal procedure based on the bilateral readmission agreement. Such returns were illegal and special procedural guarantees for unaccompanied children in the procedure were not respected. Social services were not informed about the return procedure and children were handed over to the Croatian national authorities without any guarantees being given regarding appropriate care in line with the obligations provided in the Aliens Act.[9]

The informal initiative, Info Kolpa, also made field visits to Velika Kladuša and Bihać and issued a report in May 2019 in cooperation with the organisation Border Violence Monitoring Network.[10] The report contains detailed accounts of individuals being denied access to the asylum procedure and of violence, which the individuals claim was meted out by the Croatian police.

An independent investigation into the alleged unlawful police actions in return procedures concerning foreigners who illegally crossed the Slovenian border was also conducted by the Slovenian Ombudsman who can conduct border monitoring activities within the National Preventive Mechanism framework. In August 2018, the Ombudsman issued an interim report highlighting the lack of thorough assessment of personal circumstances of each individual that could remove all doubt as to whether the person detained by the police had the intention to apply for international protection or had expressed the intention for international protection but was possibly not heard.[11]

The final report containing the findings and recommendations of the Ombudsman was published in February 2019. In respect of police procedures the findings reiterated the analysis of the interim report and further highlighted the lack of proper documentation in the procedure. The report noted that the police should be able to document the procedures in a way that would give a clear answer as to whether the person expressed the intention for international protection without any additional administrative work. In addition, the Ombudsman could not dismiss the claims that, based on the conduct of the police in some cases, asylum seekers were not able to access the asylum procedure although they had expressed their intention for international protection. The report noted that in light of foreigners being returned to Croatia in an informal and fast procedure, the police have to provide them with information on international protection if necessary and make sure they have enough time and the possibility to express the intention to apply for asylum. The report further stated that the low number of expressed intentions for international protection in certain police stations – along with the official explanation of the Ministry of the Interior that the police were forced to adjust certain procedural standards on account of the higher number of asylum seekers who often abuse the asylum procedure – highlights the seriousness of the claims regarding the misconduct of the police and collective expulsions which are prohibited by the European Convention on Human Rights (ECHR).

The report also noted that the protocol agreed between the Slovenian and Croatian Ministry of the Interior, which states that in case the foreigner is apprehended by so-called mixed police patrols (composed of Slovenian and Croatian authorities) he or she will be handed to and processed by the Croatian authorities even if he or she was apprehended on Slovenian territory, does not absolve the police of their obligations and that such a protocol is in violation with the IPA which prohibits the removal of any foreigner who expresses the intention for international protection from Slovenian territory.[12]

It is worth noting that in July 2019, the mixed police patrols were also established with the Italian authorities.

Throughout the year, the Border Violence Monitoring Network continued to report about cases of individuals who claimed that they did not have access to the asylum procedure in Slovenia,[13] while PIC also detected cases of asylum seekers claiming they were unable to apply for asylum after several attempts. Following on from the Ombudsman’s report cited above, several visits to different police stations as part of the National Preventive Mechanism framework were undertaken by the Ombudsman throughout 2019.

The Ombudsman detected irregularities in procedures with foreigners, including lack of:

  • proper documentation of the police procedure
  • translation
  • providing information regarding asylum
  • procedural guarantees for unaccompanied minors
  • individually conducted procedures.

During one visit the Ombudsman concluded that the previous recommendation in respect of police procedures being documented in a manner which removes all doubt that the foreigner did not express the intention to apply for international protection, is not respected in practice. The Ombudsman also noted that it was not evident from the documentation if and in what form the police informed the foreigners about their right to asylum.[14]  Along with the police statistics on the number of people returned to Croatia based on the bilateral readmission agreement strongly, this indicates that people continue to have limited access to the asylum procedure in Slovenia.

According to official statistics, the police documented 16,099 illegal border crossings by the end of December 2019. This is a 73.8 % increase in comparison with the same period in 2018 when the police documented 9,262 illegal crossings. Up until the end of December 2019, the police returned 11,149 out of 16,099 individuals based on the bilateral readmission agreements out of which 11,026 were returned to Croatia. In comparison 4,810 people were returned in 2018 out of which 4,678 to Croatia. This indicates a 132 % increase in the number of people returned based on the bilateral readmission agreement in 2019 and a 136 % increase of people returned to Croatia.[15]

According to official police statistics 4,991 people expressed their intention to apply for international protection in 2019,[16] out of which 3,821 lodged an application for international protection.[17] This means that 1,170 people absconded before lodging the application for international protection. In comparison, 4,266 people expressed the intention to apply for international protection in 2018,[18] out of which 2,875 lodged the application.[19] 1,391 people absconded before lodging the application in 2018 which means that the number of persons expressing their intention to apply was 17% higher in 2019 in comparison to 2018.[20]

However, 3,821 people applied for international protection in 2019 which is a 33% increase in comparison with 2,875 that applied for international protection in 2018. Accordingly, the increase of the number of illegal border crossings (71%) and the increase of people returned based on the bilateral readmission agreements (132%) is not proportional to the increase of persons who expressed the intention to apply for international protection (17%) and persons that lodged their asylum applications (33%). Based on the increase in crossings and returns in comparison with the number of expressed intentions for international protection and lodged applications, the statistical data implies that individuals are still prevented from expressing their intention to apply for international protection.

In December 2019, the Administrative Court ruled that the internal instructions of the police regarding police procedures at the border have to be disclosed as public information to Amnesty International.[21] The disclosed internal information showed that in 2018 internal instructions were given to police stations on police conduct within respect of migrants in the procedure. The documents revealed that the instructions were given with the purpose to “prevent the exploitation of the asylum procedure”. The instructions were discriminatory and indicated that the police were themselves making an assessment of the asylum seeker’s intention to apply for international protection. One of the documents contained the instructions that in case a Croatian police officer was present when the individual was apprehended and expressed the intention to apply for international protection it should be considered as if they applied in Croatia, even if the individual was apprehended on Slovenian territory. The instruction is in clear breach with international, European and national law and indicates a systematic limitation of access to the territory and the asylum procedure from the Slovenian authorities.[22]

A first judgment was also made by the Administrative Court in a case of a Moroccan citizen who applied for international protection in Slovenia and was rejected. After the asylum procedure was finished he was returned to Croatia based on the bilateral readmission agreement and subsequently to Bosnia and Herzegovina. The applicant started a subsidiary judicial procedure by filling a complaint before the Administrative Court alleging violation of his human rights. The Administrative Court ruled that in the procedure that the applicant was unable to object his return based on the prohibition of non-refoulment and did not have an effective legal remedy since he was not issued with a written decision.[23]  The Ministry of Interior appealed against the decision to the Supreme Court where the case is currently pending.

PIC did not detect any systematic physical or mental violence conducted by the Slovenian national authorities or acts that would show disrespectful or insulting treatment. 

In Slovenia monthly border monitoring visits were conducted at selected border police stations and the Aliens Centre every month by PIC with the support of the UNHCR until 2017. The activity is currently carried out by UNHCR staff.

 


[1] Articles 10, 10a and 10b Aliens Act, Official Gazette of RS, No. 50/11 and subsequent amendments.

[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, Decision U-I-59/17, 18. September 2019, available at: https://bit.ly/2TUCkz5.

[4] Police, Irregular migration statistics, June 2018, available in Slovenian at: https://bit.ly/2RA1GDT.

[5] Ministry of the Interior, Statistics, available in Slovenian at: https://bit.ly/2Ukr1k0.

[6] Police, Irregular migration statistics, January-June 2018, available in Slovenian at: https://bit.ly/2RA1GDT.

[7]  PIC, Report on findings and observations on the implementation of return procedures in accordance with the principle of non-refoulement, July 2018, available at: https://bit.ly/2T7S6oR.

[8] Article 82 Aliens Act.

[9] Article 81 and 82 Aliens Act.

[10] Info Kolpa and Border Violence Monitoring: Report regarding illegal collective expulsions on Slovenian-Croatian border, May 2019, available at: https://bit.ly/3369UXb.

[11] Ombudsman, Vmesno (s)poročilo o aktivnostih in ugotovitvah Varuha o očitkih policistom, da zavračajo možnosti podajanja prošenj za mednarodno zaščito, 22 August 2018, available in Slovenian at: https://bit.ly/2TXerVW.

[12] Ombudsman, Varuh o zahtevi za oceno ustavnosti uredbe o hrupu in ravnanju policistov na južni meji, 15 February 2019, available in Slovenian at: https://bit.ly/2C35zHP.

[13]  Border Violence Monitoring Network, Reports, available at: https://bit.ly/2vM8lS3.

[14] Ombudsman, Državni preventivni mehanizem, available in Slovenian at: https://bit.ly/33z04x1.

[15] Ministry of the Interior, Statistics, available at: https://bit.ly/2Q43i6h and https://bit.ly/33734AB.

[16] Police, Statistics, available at: https://bit.ly/38FVJt5.

[17] Ministry of the Interior, Statistics, available at: https://bit.ly/2Q4GXFP and https://bit.ly/2TVrTLB.

[18]  Police, Statistics, available at: https://bit.ly/3aIXyql.

[19] Ministry of the Interior, Statistics, available at: https://bit.ly/39GXkjw and https://bit.ly/335mwxG.

[20] After the person expresses their intention to apply for international protection the police have the obligation to conduct the preliminary procedure after which the person is brought to the Asylum Home. Before lodging the application, asylum seekers are de facto detained in the Asylum Home. Since people can wait up to 15 days to lodge the application the absconding rate of persons before they lodge the application is high. 33% of people absconded before they lodged the application in 2018 and 22% absconded before they lodged the application in 2019.

[21]  Administrative Court, Decision, I U 2599/2018, 27. November 2019.

[22] Internal police instructions were also obtained by PIC.

[23]  Administrative Court, Decision I U 1412/2018, 18. December 2019.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the first report
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation