Constitutional court case law

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Case number:
U-I-59/17
ECLI:
ECLI:SI:USRS:2019:U.I.59.17
Challenged act:
Operative provisions:
Abstract:
When the Constitutional Court reviews the constitutionality of a law falling within the scope of EU law it must consider the Charter of Fundamental Rights of the European Union and the case law of the Court of Justice of the European Union that was formed on the basis thereof when reviewing the consistency of the challenged provisions with the Constitution.
 
The content of the first paragraph of Article 33 of the Geneva Convention and of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms is encompassed by Article 18 of the Constitution. The mentioned constitutional provision includes the requirement to observe the principle of non-refoulement, which prohibits the direct or indirect return of individuals to a country in which they may face treatment violating the right to the prohibition of torture.
 
The principle of non-refoulement ensures individuals the right to enter and to stay in the country where they seek protection and the right to fair and effective proceedings in which they are ensured a substantive review of whether their surrender could put them at a real risk of inhumane or degrading treatment.
 
The removal of individuals who claim that they need protection from a country without assessing whether substantial reasons have been demonstrated that justify the conclusion that there exists a real risk that by their removal from the country they may face inhumane treatment is consistent with the principle of non-refoulement only if the third country is safe (i.e. the safe third country concept). A third country is safe if it provides such individuals effective protection against a violation of the principle of non-refoulement. The safe third country concept, which is based on the rebuttable presumption of mutual trust among countries, is consistent with the principle of non-refoulement if the third country is obliged to fulfil comparable international obligations.
 
When individuals are surrendered to another EU Member State, a precise and individual assessment of all the circumstances that are relevant from the viewpoint of respect for the principle of non-refoulement must be ensured. Individuals must be guaranteed with certainty access to proceedings that ensure an assessment of whether substantial reasons have been demonstrated that justify the conclusion regarding the existence of a real risk that by their removal from the country they may face inhumane treatment.
 
A situation wherein the existence of a state is threatened and a real risk exists that due to the changed circumstances concerning migration its inhabitants will face inhumane treatment is regulated by Article 92 of the Constitution.
 
A statutory regulation that limits the types and number of circumstances by which it can be demonstrated that a serious risk exists that individuals will face inhumane treatment due to their surrender to another country and a regulation that cannot guarantee individuals with certainty access to proceedings that ensure an assessment of whether substantial reasons have been demonstrated that justify the conclusion that there exists a real risk that by their removal from the country they may face inhumane treatment do not allow for effective exercise of the right determined by Article 18 of the Constitution. Therefore, this entails an interference with the right determined by Article 18 of the Constitution. Interferences with such right are inadmissible.
Thesaurus:
Legal basis:
Cases joined:
¤
Full text:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Human Rights Ombudsman
Date of application:
19. 4. 2017
Date of Decision:
18. 9. 2019
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Published:
Official Gazette RS, No. 62/2019
Document:
AN03961

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All decisions the Constitutional Court adopted since independence of Slovenia, with the exception of orders rejecting constitutional complaints or not accepting them for consideration on the merits that contain as reasoning only the reference to the statutory basis of the decision and the composition of the panel of the Constitutional Court (the fourth paragraph of Article 55c of the Constitutional Court Act), are published on this website.

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