“It makes our case stronger,” said Swedish MEP Malin Bjork, who visited the refugee camps in Bosnia last year and met the applicant.

“Our duty as MEPs remains to act so that the rule of law and respect for human rights are upheld.”

“There are thousands of other people who have been pushed back. It is a structural problem not an individual one and it has to be addressed as such.”

Mutual trust between EU states “not absolute”

Illustration. Photo: EPA/CHRISTIAN BRUNA

The decision by the Administrative Court is not final and the Slovenian Interior Ministry has said it will appeal. If the ruling is upheld, Slovenia will have to allow entry for the Cameroonian, allow him to apply for asylum and pay 5,000 euros in damages.

The court did not go as far as others in Switzerland and Italy in ruling conditions in Croatia – as well as in Slovenia – pose such a risk to the human rights of asylum seekers that transfers had to be halted. It also did not rule that the bilateral transfer agreement between Slovenia and Croatia violated human rights conventions.

But it did say that Slovenian police failed to provide the legal guarantees demanded under EU law.

Citing reports by the Council of Europe, United Nations, MEPs, national Ombudsman Offices and non-governmental human rights organisations, the court ruled that the principle of mutual trust among EU member states is not absolute.

A member state, it ruled, must take into consideration reliable and sufficient reports casting serious and substantiated doubt on whether basic human rights are being upheld in another member state.

It based its ruling on the principle of non-refoulment, prohibiting the removal, expulsion or extradition of a person to another state where serious danger of the death penalty, torture or other inhuman or degrading treatment or punishment exists.

‘Massive win’

Refugees camping at the Croatia-Slovenia border near Bregana, Slovenia. Photo: EPA/MARIJAN MURAT

In the wake of the ruling, the prevalence of such practices was illustrated by a new report from the office of the Slovenian Ombudsman on the collective expulsion of more than a 100 people between July 19 and 20 last year near Ilirska Bistrica close to Slovenia’s southern border with Croatia.

Though detained overnight, none of the men were issued any official documents as required by the law. No one was informed of the reasons for their detention or of their right to legal counsel and to appeal the detention. The police said only seven people, five of them minors, requested international protection.

All others were subsequently returned to Croatia on the basis of the bilateral agreement despite the fact that no police procedures were undertaken or decisions issued establishing the offence of illegal border crossing as required under the terms of the agreement.

The Ombudsman welcomed the fact that in May 2020 the Interior Ministry issued new instructions to police, while noting that it had not yet seen them. But he warned that when police abdicate in their duties it can lead to a situation in which “an individual in police custody is no longer of importance, making the person no more than an object of a police procedure.”

The Ombudsman said the administrative court ruling in the case of the Cameroonian was “encouraging”. InfoKolpa said it was “a massive win” that nevertheless “leaves a bitter taste in the mouth”.

For others, the collective said, it remains “almost impossible to find justice”.

No lawsuit, for example, has been filed in the Ilirska Bistrica case of illegal collective expulsion.

Courts offer best hope

General view during a plenary session of European Parliament in Brussels, Belgium, 2020. Photo: EPA-EFE/OLIVIER HOSLET

In the European Parliament, a cross-party group of MEPs is pushing for a general debate in September on the illegal practice of pushbacks.

In the meantime, Italian and international NGOs have filed a complaint to the UN Committee Against Torture drawing attention to illegal pushbacks also from Italy to Slovenia and then to Croatia, Bosnia and Serbia.

Slovenia’s right-wing government, which takes over the rotating presidency of the EU in January 2021, has announced plans to change laws regulating border protection, the rights of foreigners and asylum procedures. Rights groups say the proposed changes to the Aliens Act are an attempt to make lawful restrictions to the right to apply for asylum that the Constitutional Court has already declared illegal and unconstitutional.

Slovenian MEP Milan Brglez, who has been critical of Slovenia’s asylum and migration policies, said the courts looked like the only hope, particularly under current right-wing Prime Minister Janez Jansa.

“Unfortunately, I see no other option than to continue down the judicial pathways in Slovenia as well as in Europe,” said Brglez.

“To hope the legislation will be changed favourably, under the ruling coalition, is simply unrealistic.”