C.K., a Syrian national and H.F, an Egyptian national, entered the territory of the EU using a visa issued by Croatia and after a short stay there crossed into Slovenia and requested international protection there. At the time of her entry into Slovenia, C.K. was pregnant. The Slovenian authorities sent a request to the Croatian authorities considering Croatia was the Member State responsible to examine C.K.'s application according to Article 12(2) of the Dublin III Regulation. The Croatian authorities accepted its responsibility. Considering the advanced pregnancy of C.K., Slovenia did not pursue the Dublin procedure until a later stage when she gave birth to her child A.S. An application for international protection was submitted on the newborn's behalf and was dealt together with those of C.K. and H.F. Later on, the Ministry of Interior issued a decision refusing to examine the applications of the applicants, ordering their transfer to Croatia.  The Administrative Court (Upravno sodišče) annulled that decision and referred the case back for re-examination instructing the competent authorities to obtain assurance from Croatia that the applicants would have access to adequate medical care in that Member State. 

A request was sent by the Slovenian authorities to the Croatian authorities. The Croatian authorities replied with an assurance that the applicants would be provided accommodation, adequate care and any necessary medical treatment in Croatia.  Subsequently, the Ministry of the Interior in Slovenia adopted a new decision refusing to examine the applications for asylum and ordering their transfer to the Republic of Croatia. The applicants appealed to the Administrative Court requesting the provisional suspension of the enforcement of the decision. In their appeal, the applicants claimed that the transfer would have negative consequences for the state of health of C.K. also likely to affect the well –being of her newborn child. They argued that C.K. had a high-risk pregnancy and she suffered psychiatric difficulties since giving birth. They submitted that a specialist psychiatrist had diagnosed her as having post-natal depression and periodic suicidal tendencies. Several medical opinions submitted indicated that the deterioration of her psychological state could result in aggressive behaviour on her part towards herself and others, which might require hospital care. C.K. was recommended to remain at the reception centre in Ljubljana to receive care there.  

The Administrative Court annulled the decision to transfer the applicants and suspended the enforcement of that decision until a final decision had been adopted on the substance of the dispute. The Ministry of the Interior appealed the decision to the Supreme Court, which amended the judgment at first instance and confirmed the transfer decision. The applicants lodged an appeal to the Constitutional Court, which set aside the judgment of the Supreme Court and remanded the case. The Supreme Court decided to stay the proceedings and submit four questions to the CJEU for preliminary ruling. 

By the first question, the Supreme Court asked whether Article 17(1) of the Dublin III Regulation must be interpreted as meaning that the question of the application, by a Member State, of the ‘discretionary clause' laid down in that provision is governed solely by national law and the interpretation given to it by the constitutional court of that Member State, or whether it is a question concerning the interpretation of EU law, within the meaning of Article 267 TFEU. 

The CJEU held that the application of the ‘discretionary clause' laid down in Article 17(1) of the Dublin III Regulation does involve an interpretation of EU law, within the meaning of Article 267 TFEU. The court held that its application is not governed solely by national law and by the interpretation given to it by the constitutional court of that Member State. 

Next, the CJEU dealt with the second, third and fourth questions altogether. They concerned whether Article 4 of the Charter must be interpreted as meaning that, in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that article. In the affirmative, the referring court expresses uncertainty as to whether the Member State concerned would be required to apply the ‘discretionary clause' laid down in Article 17(1) of that regulation and itself examine the asylum application at issue. 

By making extensive references to CJEU case of N.S. (C‑411/10 and C‑493/10, 21 December 2011) and considering the ECtHR case of Paposhvili v Belgium (Application No  41738/10, 13 December 2016) the court concluded that 

–   even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible for examining the application for asylum, the transfer of an asylum seeker within the framework of the Dublin III Regulation can take place only in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that article; 

–   in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that article; 

–  it is for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person's state of health. If, taking into account the particular seriousness of the illness of the asylum seeker concerned, the taking of those precautions is not sufficient to ensure that his transfer does not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member State concerned to suspend the execution of the transfer of the person concerned for such time as his condition renders him unfit for such a transfer, and 

– where necessary, if it is noted that the state of health of the asylum seeker concerned is not expected to improve in the short term, or that the suspension of the procedure for a long period would risk worsening the condition of the person concerned, the requesting Member State may choose to conduct its own examination of that person's application by making use of the ‘discretionary clause' laid down in Article 17(1) of the Dublin III Regulation.