Author
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) 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 and remove the persons 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 Ombudsman, prepared with support of civil society organisations.[2] The Constitutional Court ruled in U-I-59/17[3] that the amendments were in breach of Article 18 of the Constitution (prohibition of torture).[4]
Nonetheless, in 2021 the National Assembly accepted the amendments of the Foreigners Act that establish the concept of a “complex crisis in the field of migration”. In line with the new provisions, the Ministry of 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 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.
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 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.[5] In 2022 the amended provisions of the Foreigners Act were not yet activated.
The Slovenian Human Rights Ombudsman notified the European Commission of the newly adopted provisions and his position regarding the provisions. In his statement he noted that as the Government had failed to respect the decision of the Constitutional Court by proceeding with the adoption of the amended provisions, there is the possibility that another procedure before the Constitutional Court would not be effective, as the Government could once again fail to respect the decision.[6] DG HOME told the Ombudsman that they are conducting a careful preliminary analysis of the situation as it raises complex questions regarding border control, police powers, asylum and return in case of a potential migration crisis. DG HOME also noted that they will 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 the provisions to the Constitutional Court for constitutional review.[8] The decision on constitutional review was not taken in 2022.
In the first half of 2022 the new government was formed. The new Minister of Interior announced in June 2022 that Slovenia will remove the border fence between Slovenia and Croatia.[9] The works began in July 2022, however only 4,142 metres of the fence were removed by the middle of September.[10] The new Minister also planned a new migration and asylum strategy that included legislative and policy changes. The Ministry constituted working bodies for preparation of the legislative changes, new integration policies and new migration and asylum strategy. In December 2022 the Minister of Interior resigned and a new one was not appointed by the end of the year.[11]
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.[12]
In 2022 the police detected 32,024 irregular crossings of the Slovenian border. This is a 214% increase in comparison to the previous year.
The most common countries of origin of people who were apprehended for irregular border crossing were: Afghanistan (6,010), Burundi (5,142), India (3,868), Pakistan (2,361), Bangladesh (2,110), Russia (1,816), Iraq (1,545), Cuba (1,474), Turkey (1,294), Iran (940) followed by other nationalities.[13] In practice Ukrainians are allowed entry and are not processed for irregular border crossing even if they do not fulfil the entry requirements eg. a valid passport which is evident from the statistics.
According to the statistics, 31,447 individuals expressed their intention to apply for international protection. This is a 456.6% increase from the 4,995 individuals who applied in 2021.[14] 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.[15] 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.[16] 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.
Out of 2,361 readmitted individuals 406 were from Afghanistan, 311 were from Bangladesh, 277 were from Türkiye, 272 were from Pakistan, 201 were from India, 200 were from Nepal, 153 were from Iraq, 11 were from Kosovo and 88 were from Iran. Out of 2,361, 2,169 individuals were readmitted to Croatia.[17]
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.[18] In practice, no assessment of whether the principle of non-refoulement could be violated by a return from Slovenia is conducted.[19] 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.
Based on the readmission agreements, Slovenia also received 427 individuals in 2022. This is an increase in comparison to 2021 when 217 persons were received. The number in 2022 increased because more people were readmitted to Slovenia through the airport. Out of 282 individuals readmitted through the airport, 113 were from Afghanistan, 30 from Algeria, 16 from Iran, 15 from Morocco and 15 from Turkey.[20]
Following an Italian court decision[21] in January 2021 mass readmissions from Italy mostly stopped in 2021. The court determined that the 1996 readmission agreement could not form a legal basis for return as it is not in accordance with Italian and EU law. Nonetheless, PIC observed that returns did take place in 2022 based on readmission agreements from Italy to Slovenia. In 2022, 65 people were readmitted from Italy.[22] At the end of the year the Italian authorities started to strongly urge Slovenia to resume the use of readmission agreements between the countries.[23]
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[24] 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.[25] In 2021, 70 persons were readmitted from Austria on the basis of the readmission agreement.[26] Individuals’ testimonies show that some were returned to Croatia by the Slovenian authorities after being readmitted from Italy or Austria.[27] In 2022, 58 individuals were readmitted from Austria to Slovenia.[28]
At the beginning of 2022 PIC and other organisations in Slovenia regularly detected pushbacks at the Slovenian border.[29] While lodging the application 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 pushback and the use of readmission agreements have dropped significantly.
During the year 2022 the Slovenian Ombudsman received 15 complaints regarding asylum, temporary protection and the principle of non-refoulement. The Ombudsman finished two investigations in 2022. The first was the case of a young Turkish girl who drowned while crossing the border between Croatia and Slovenia with her family in December 2021.[30] The Slovenian Ombudsman conducted an overview of the police procedure and found that the police had violated the prohibition of collective expulsion, the principle of non-refoulement and the right to asylum when processing the family. The Ombudsman found that the police did not get any kind of official statements from the family members. They did not conduct an assessment of individual circumstances regarding the return, did not issue a return decision, did not inform the family on the procedure or their right to legal help, did not provide translation during the procedure and did not give the family the chance to express their intention to apply for asylum. The Ombudsman found that immediately after the family members were medically examined by the river they were readmitted to Croatia. Regarding the principle of non-refoulement the Ombudsman noted that the police did not conduct an individual assessment and that due to the well-known reports on police violence in Croatia the police should have concluded that the return of the remaining family members to Croatia would violate their fundamental human rights.[31]
The second was the case of an Afghan national who was pushed back twice in 2021. The Ombudsman found that the police did not carry out the assessment of non-refoulement and did not give the individual the possibility to present individual circumstances against the return. The Ombudsman also noted that because the individual had expressed the intention to apply for international protection the return was not lawful. The Ombudsman concluded that the police had violated the prohibition of collective expulsions, the principle of non-refoulement, the right to legal remedy and the right to asylum in the procedure.[32]
Border monitoring
There is no systematic border monitoring in Slovenia. Border monitoring is conducted by UNHCR. In 2022 UNHCR conducted 11 visits to police stations and 1 visit to the airport 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 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 Interior and the police station. In 2022 the Ombudsman visited 18 police stations. During one of the visits the Ombudsman noted that procedures with foreigners were not conducted individually. In addition, only two foreigners in the group had the chance to give a statement during the procedure. The Ombudsman reiterated that the right to be heard is one of the basic procedural rights that allows a foreigner to defend their rights and legal interests. If the foreigner does not have the chance to give a statement during the procedure and if their statements are not recorded it is not possible to subsequently check how the police procedure was conducted.[33]
Litigation and case-law on incidents occurring at the border
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.[34] The Ministry of Interior appealed against this decision to the Supreme Court,[35] 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. The case was dismissed in December 2021 because the time limit for constitutional review had expired.[36]
In 2020, another judgment from the Administrative Court was also made in a case concerning a Cameroonian national.[37] 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.[38] 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.[39] The Ministry of Interior appealed the decision again and in the new procedure the Supreme Court confirmed the decision of the Administrative Court which thus became final.[40]
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 crossing at the border. During the police procedure they repeatedly asked for asylum in Slovenia. The police did not register their intent 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 2022, a decision had not yet been made by the Administrative Court.[41]
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 contain any legal pathways such as humanitarian visas. In addition, relocation and resettlement programs are not in place and were not carried out throughout 2022.
[1] For more on the amendments see AIDA, Country Report Slovenia – 2021 Update, 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, Decision U-I-59/17, 18. September 2019, available at: https://bit.ly/2TUCkz5.
[4] For more on the Counstitutional Court decision see AIDA, Country Report Slovenia – 2021 Update, May 2022, available at: https://bit.ly/3kCs3cg.
[5] The proposed changes of Article 10a and 10b of the Foreigners Act are available at: https://bit.ly/3eZhMS3.
[6] Varuh človekovih pravic, ‘Varuh Evropsko komisijo seznanil s svojimi pogledi na novelirano tujsko zakonodajo’, 16 August 2021, available in Slovene at: https://bit.ly/3wEsAwk.
[7] Official information provided by the Ombudsman office, March 2023.
[8] N1, ‘Stranke KUL zahtevajo presojo ustavnosti določb zakona o tujcih’, available in Slovene at: https://bit.ly/39ACEP9.
[9] Infomigrants, ‘Slovenia to dismantle border fence with Croatia’, available at: http://bit.ly/3I34nal.
[10] Ptujinfo, ‘Vse manj žične ograje na meji s Hrvaško, skupaj odstranili okoli štiri kilometre žice’, 18 September 2022, available in Slovene at: http://bit.ly/3y2Bm8q.
[11] MMC, ‘Odstopna izjava Tatjane Bobnar v DZ-ju, ministrstvo bo začasno prevzela Sanja Ajanović Hovnik’, 12 December 2022, available in Slovene at: http://bit.ly/3VugQXt.
[12] 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, no longer available online as of January 2023.
[13] Official police statistics available at: http://bit.ly/3WvTZfq .
[14] Ibid.
[15] For more on pushbacks see AIDA, Country Report Slovenia – 2021 Update, May 2022, available at: https://bit.ly/3kCs3cg.
[16] Official statistics available at: http://bit.ly/3WvTZfq.
[17] Official statistics available at: http://bit.ly/3WvTZfq.
[18] 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.
[19] 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.
[20] Official statistics provided by the Police, February 2023.
[21] Decision of Ordinary Court of Rome, N.R.G.56420/2020, 18. January 2021.
[22] Official police statistics available at: http://bit.ly/3WvTZfq.
[23] Nuova Europa, Migrants: Prisco, in force readmissions with Slovenia, 6 December 2022, available at: https://bit.ly/41zZA6C.
[24] Readmission agreement between Slovenia and Austria available at: https://bit.ly/3f69msn.
[25] Official police statistics available at: https://bit.ly/3vMfX0T.
[26] Official police statistics available at: https://bit.ly/3vMfX0T.
[27] BVMN, individual testimonies and reports available at: https://bit.ly/3vOZf0M and https://bit.ly/3lyAD7W.
[28] Official police statistics available at: http://bit.ly/3WvTZfq.
[29] Border Violence Monitoring Network, Testimonies, available at: https://bit.ly/3KGLMk0.
[30] Info Migrants, 10-year-old girl dies at Slovenia-Croatia Border, available at: https://bit.ly/3mIVk60.
[31] The report of the Slovenian Obmudsman, 7.3-17/2021.
[32] The report of the Slovenian Obmudsman, 7.3-6/2021.
[33] National Preventive Mechanism, Priporočila iz obiskov (preglednice), available at: https://bit.ly/3Lo1zSZ.
[34] Administrative Court, Decision I U 1412/2018, 18 December 2019.
[35] Supreme Court Decision, I Up 21/2020, 8 July 2020.
[36] Constitutional Court Decision, Up-1114/20, 13. December 2021.
[37] Administrative Court, Decision, 1490/2019, 22 June 2020.
[38] Supreme Court Decision, I Up 128/2020, 28 October 2020.
[39] Administrative Court Decision, I U 1686/2020, 7 December 2020.
[40] Supreme Court Decision, I U 1686/2020, 9. April 2021.
[41] Administrative Court, case run under the number I U 1167/2021. A decision was not made at the time of the writting of the report.