The Supreme Court of the Republic of Slovenia issued a decision by which it granted the revision and changed the judgement by the Administrative Court of the Republic of Slovenia [Decision of 27/11/2018 no. IE 2368 / 2018-13] in such a way that the legal action is granted and the Ministry of Interior’s decision [Decision of 16/11/2018 no. 2142-2528 / 2018/16 (1312-19)] abolished.
According to the European Court of Justice’s opinion, the Dublin Regulation III requires that the establishment of the risk of absconding must be based on objective criteria determined by the law and should be applied considering the circumstances of the individual case. The national law that allows the deprivation of liberty must be sufficiently accessible and its application foreseeable in order to prevent any danger of arbitrary action.
The competent court ruled that in the International Protection Act, there is no relevant legal ground for the detention of an applicant for international protection undergoing the procedure pursuant to Dublin Regulation III. Already based on a simple language explanation it is possible to conclude that this cannot only be point 31 of Article 2 of IPA (nor is this provided in subsequent articles of IPA) that define the concept "risk of absconding" since it does not explain which circumstances or objective criteria must be given to conclude with certainty that a person will abscond.
The Court finally stated that the legislator should respond appropriately and already in the ZMZ-1 to determine what objective criteria must be given to determine the existence of such a threat, which is the reason for detention in accordance with Article 28 of the Dublin III Regulation, or to refer in this regard to another the relevant law.
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