Access to the territory and push backs

Slovenia

Country Report: Access to the territory and push backs Last updated: 31/03/21

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In early 2017, Slovenia adopted amendments to the Foreigners Act which allow for future restrictions on access to the asylum procedure. Pursuant to the amendments, the National Assembly (Parliament) can vote on suspending the right to asylum in the case that migration poses “a threat to public order and internal safety in the Republic of Slovenia”. If the parliamentary measure is adopted, the Police are instructed by law to reject all statements of intention to apply for international protection as inadmissible as long as the person wishing to apply entered Slovenia from a neighbouring EU Member State in which there are no systemic deficiencies of asylum procedure or reception conditions which could lead to torture, inhuman or degrading treatment. The Police then remove 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 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, are 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 Foreigners 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. Nonetheless, in 2020 the Ministry of Interior proposed a new amendment to the Foreigners Act that incorporates the concept of a “complex crisis in the field of migration”.  According to the proposal, the Ministry of Interior would regularly monitor 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 of Interior can propose that the government activates the articles of the Foreigners Act that allow the National Assembly to close the border for 6 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.

According to the proposal, the police would have the authority to determine whether a person can apply for international protection after they express the intention to apply. 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.[4] The proposal was adopted in late March 2021.

Stating that there is a lack of police personnel available at the border, the government tried to activate the provisions of the Defence Act during the pandemic that would give the army additional powers at the border.[5] The proposal was not supported by Parliament and was heavily opposed by NGOs, since it would result in more human rights violations at the border. As pointed out by NGOs, the Slovenian army does not undergo adequate human rights training, especially in the area of asylum and migration.

Pushbacks, illegal police practices and other incidents at the border

In practice the police do not conduct any identification of persons in need of protection in migration groups entering the Slovenian territory.[6]

In 2020 the police detected 14,592 irregular crossings of the Slovenian border. The most common countries of origin of people who were apprehended for irregular border crossing were: Pakistan (3.519), Afghanistan (3,038), Morocco (2,414), Bangladesh (1.508), Croatia (636), Algeria (627), Iraq (549), Iran (364), Turkey (304) and Syria (290).[7] According to the statistics only 4,008 individuals expressed their intention to apply for international protection.[8] The discrepancy between the number of irregular crossings and the number of people that actually enter the procedure for international protection, supported by numerous reports on pushbacks,[9] shows that access to the asylum procedure is systematically denied to individuals in the police procedure. After the police procedure, individuals are returned based on the readmission agreement to the country from which they entered Slovenia.

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 with a return decision, do not have the right to appeal and do not have the right to free legal aid or representation.[10] In practice, no assessment of whether the principle of non-refoulement could be violated by a return from Slovenia is conducted.[11] Therefore, there is no possibility for individuals in the procedure to argue that there has been a violation of the non-refoulement principle, or to challenge the decisions of the police. It is also not evident from the police documentation 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. This issue was also highlighted by the Slovenian Ombudsman in its reports.[12]

In 2020 the Slovenian police returned 10,025 of the 14,592 apprehended migrants to neighbouring countries based on the readmission agreements. The large majority, i.e. 9,950 persons, were returned to Croatia.[13] Out of the 10,025 returned migrants, 3,025 were from Pakistan, 2,100 from Afghanistan, 1,378 from Bangladesh, 1,304 from Morocco, 386 from Algeria, 359 from Iraq, 249 from Iran, 216 from Turkey and 183 from Syria.[14] Reports show that migrants still in the police procedure were not able to effectively access the asylum procedure. According to testimonies given upon their return to Bosnia, misinformation was given to migrants by the police during the police procedure, e.g. that there is no asylum in Slovenia, that they are not entitled to asylum or that they would be placed in asylum facilities but were in fact returned to Croatia.[15]

Based on the readmission agreements, Slovenia also received 1,116 individuals from Italy in 2020. 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[16] 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.[17] Individual testimonies of individuals show that some were returned to Croatia by the Slovenian authorities after being readmitted from Italy or Austria.[18]

Border monitoring

There is no systematic border monitoring in Slovenia. Border monitoring is conducted by UNHCR. In 2020 UNHCR conducted 19 visits to police stations where they checked police records and conducted talks with the police. In order to conduct border monitoring, UNHCR must notify the police station prior to the visit. UNHCR can only check police documentation regarding the individuals who applied for international protection.

Border monitoring is also conducted by the Slovenian Ombudsman within the National Preventive Mechanism framework. The Ombudsman can make unannounced visits to police stations and has the authority to check all of 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 2020 the Ombudsman visited 16 police stations. During its visits the Ombudsman detected several problems regarding access to the asylum procedure. The lack of any screening of persons in need of international protection is one of the biggest problems in Slovenia. The Ombudsman noted that the police do not conduct screening and do not provide information on international protection when individuals express an intention to apply for international protection. The Ombudsman recommended that the police should process foreigners individually and that they should record whether the individual was informed about the right to asylum, and whether they want to claim it. The Ministry of the Interior, however, responded that the police do not have the obligation to inform each migrant about the right to asylum.[19]

Throughout 2020, the Border Violence Monitoring Network continued to report cases of individuals who claimed that they did not have access to the asylum procedure in Slovenia,[20] while PIC also detected cases of asylum seekers claiming they were unable to apply for asylum after several attempts. Cases of summary returns were also detected from Italy to Slovenia, and for the first time, from Austria to Slovenia. These reports, along with the police statistics on the number of people returned to Croatia based on the bilateral readmission agreement, indicate that people continue to have limited access to the asylum procedure in Slovenia.

Litigation and case-law on incidents occurring at the border

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 if 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 a clear breach of international, European and national law and indicates a systematic limitation of access to the territory and the asylum procedure from the Slovenian authorities.[22]

In 2019, 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 filing a complaint before the Administrative Court alleging a violation of his human rights. The Administrative Court ruled that in the procedure, the applicant was unable 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 with a written decision.[23]  The Ministry of Interior appealed against this decision to the Supreme Court,[24] which found that the fact that a written decision was not issued to the applicant was not unlawful. The case was referred to the Constitutional Court on the initiative of the Ombudsman and is currently pending.

In 2020, another judgment from the Administrative Court was also made in a case concerning a Cameroonian national in 2020.[25] The Cameroonian national crossed the Slovenian border in August 2019 with the intention of applying for asylum in Slovenia. The applicant claimed that he had expressed the intention of applying for international protection several times while in 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 paid 5,000 euros in compensation. The decision was annulled by the Supreme Court and returned to the Administrative Court.[26] In the new procedure, 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.[27] The Ministry of the Interior appealed the decision again and the case is currently pending before the Supreme Court.

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.

 

[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] The poposed changes of Article 10a and 10b of the Foreigners Act are available at: https://bit.ly/3eZhMS3

[5] Article 37.a of the Defence Act, Official Gazette of RS No. 103/04 available in Slovenian at: https://bit.ly/3tIE1ju

[6]  This was also noted by the Slovenian Ombudsman in his 2019 NPM report: 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 Slovene at: https://bit.ly/30Oxg32.

[7] Official Police statistics available at: https://bit.ly/3lCKzgG.  

[8] Ibidem.

[9] Border Violence Monitoring Network (BVMN), Individual testimonies and reports available at: https://bit.ly/3vN2ki0.  

[10] 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.

[11]  Ombudsman, 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

[12] 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/2PkOOS4; Ombudsman, 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 at: https://bit.ly/31bk0Wl

[13] Official Police statistics available at: https://bit.ly/3tGSw7d.

[14] Official statistics provided by the Police, January 2021.

[15] Border violence monitoring, individual testimonies and reports available at: https://www.borderviolence.eu/

[16] Readmission agreement between Slovenia and Austria available at: https://bit.ly/3f69msn.

[17] Official police statistics available at: https://bit.ly/3vMfX0T

[18] BVMN, individual testimonies and reports available at: https://bit.ly/3vOZf0M and https://bit.ly/3lyAD7W.

[19] Ombudsman, Policijske postaje 2020, available at: https://bit.ly/3166ZgJ

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

[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.

[24]  Supreme Court Decision, I Up 21/2020, 8 July 2020.

[25] Administrative Court, Decision, 1490/2019, 22 June 2020.

[26]  Supreme Court Decision, I Up 128/2020, 28 October 2020.

[27]  Administrative Court Decision, I U 1686/2020, 7 December 2020.

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