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Slovenia: Mechanisms Introduced for Stricter Border Control of Refugee Influx

(Feb. 9, 2017) On January 26, 2017, the Parliament of Slovenia adopted amendments to the laws on aliens and on state border control that if implemented would allow the government to introduce a special temporary system of border checks and prevent the admission of refugees into the country. (Slovenia Passes Law Allowing Migrant Border Pushbacks, AFP (North European Service) (Jan. 26, 2017), Open Source Enterprise, Doc. ID: EUR2017012673892732.)  A constitutional majority (two-thirds of the votes of the deputies present) is needed for the approval and imposition of the measure, as required for laws related to issues of national defense and territorial integrity according to article 124 of the Slovenian Constitution.  (Id.; Zakon o Tujcih [Aliens Act], URADNI LIST RS [OFFICAL GAZETTE OF THE REPUBLIC OF SLOVENIA] 2008, No. 71, arts. 11, 26, & 64-66, most recent English translation (2012) available at INFORMATION FOR FOREIGNERS WEBSITE; Constitution, OFFICIAL GAZETTE OF THE REPUBLIC OF SLOVENIA, No. 33/91-I (Dec. 23, 1991, as amended), Republic of Slovenia Constitutional Court website.)

Changes to the Aliens Act

Under the amendments to the Aliens Act, the government would have the authority to refuse foreigners who do not meet requirements entry into Slovenia and to expel those who have entered the country unlawfully through a simplified procedure.  The Interior Ministry, the government agency in charge of the national police and border control, could recommend the application of both of these measures on refusal of entry and on expulsion if it could establish that the “migrations have become a threat to law and order or internal security of Slovenia.”  (Slovenia Passes Law Allowing Migrant Border Pushbacks, supra.) In such cases, the government would be required to seek parliamentary approval in order to carry out the measures.  (Id.)

Individual requests for asylum would be reviewed by the national police agency, and the Ministry of Interior will decide on appeals for asylum denials. Reportedly, for those entering from other European Union Member States, “notwithstanding the law on international protection, such requests would be rejected by police as unfounded unless there were systemic shortcomings with regard to asylum in the EU country from which such a person entered.”  (Slovene Coalition to Look at ‘Compromise’ Proposal for Stricter Asylum Policy, LJUBLJANA STA (Jan. 21, 2017), Open Source Enterprise, Doc. ID: EUL2017012336813089 Ljubljana STA.)  Such “systemic shortcomings” would include the risk of torture or of inhumane or degrading treatment.  (Id.) The new law also requires that asylum be granted to asylum seekers who are in poor health or who are unaccompanied minors regardless of the fact that the individual entered Slovenia from another EU Member State. (Id.)

Applicable International Law

The 1951 United Nations Refugee Convention is the main international law document that regulates obligations of the 145 signatory states in the field of refugee protection and prevents recipient states from returning refugees to a country where they may face a threat. (Convention and Protocol Relating to the Status of Refugees (1951), U.N. High Commissioner for Refugees website.)  The 1997 Amsterdam Treaty Amending the Treaty of the European Union includes a set of protocols, the second of which integrates the Schengen agreements on the common European border into the framework of the European Union Treaty. (Protocols Annexed to the EU Treaty, the EC Treaty and the EAEC Treaty – Consolidated Version 2003, CVCE.EU.)  In regard to refugees, the 1990 Convention Implementing the Schengen Agreement imposes the responsibility to handle the aliens on the country of their first entry into the Schengen zone. (Convention Implementing the Schengen Agreement of 14 June 1985, arts. 12 & 19, 2000 O.J. (L 239) 19-62, EUR-LEX.)

Criticism of the New Measures on Aliens

Legislators rejected accusations that the new measures would violate international conventions, arguing that “no convention can be interpreted in a way that would demand of a country to put in peril its public order and internal security.”  (Slovene Minister Wants Geneva Convention Adapted to Help Against Mass Migrations, LJUBLJANA STA (Jan. 21, 2017), Open Source Enterprise, Doc. ID: EUL2017012337183663.)  The government position is that Slovenia cannot violate the principle of non-refoulement as defined by the 1951 Refugee Convention, “since persons whose entry can be rejected are arriving from the territory of a neighboring EU member … meaning a safe state in line with the protocol to the Amsterdam Treaty.”  (Id.)

Even though the measures are expected to limit mass migration of foreigners to Slovenia while providing for the review of individual asylum claims, human rights defenders expressed concerns that “[b]y sealing its borders to desperate people and turning its back on its international obligations, Slovenia is treading the same unseemly path as its neighbors — Hungary and Austria,” and may create a domino effect in the region.  (Lawrenz Fares, Amnesty: Slovenia Strips Refugees of EU and International Law Protection, PAPER CHASE  (Jan. 27, 2017).)

The new legislation appears to be a response to the situation that occurred in March 2016, when neighboring countries closed their borders to refugees from the Middle East, and Slovenia, the smallest state along the migration corridor, with less than two million people, saw almost 500,000 illegal migrants crossing the country on their way to wealthier Western European countries.  In a recent interview, Slovenian Interior Minister Vesna Znidar said that the “Schengen system has collapsed, the free flow of people is undermined, and economic migration cannot be tackled merely through the asylum system” because these migrations “are conceptually increasingly at odds with the need for individual processing.”  (Slovene Minister Wants Geneva Convention Adapted to Help Against Mass Migrations, supra.)

State Border Control Act Amendments

Changes to the State Border Control Act were passed simultaneously with the amendments to the Aliens Act.  These amendments introduce new security measures and give the police more legal instruments to use in responding to the migration crisis.  The amended Act specifically permits border control police to take photos, make video and audio recordings, and use special technological devices, including automatic license plate readers, to identify persons, vehicles, and objects.  (Slovene Parliament Passes Law Giving Border Police Broader Powers To Prevent Illegal Migration, LJUBLJANA STA (Jan. 25, 2017) Open Source Enterprise, Doc. ID: EUL2017012635986009.)

The owners of land on the border will have to allow the installation and use of such devices on their property.  The government’s right of eminent domain to use private lands along the border is expanded, and special budget allocations are foreseen to reimburse those owners whose properties are affected by installation of a border fence.  (Id.)  The amended Law also introduces new standards for police checks inside the country; the police can review an individual’s documents and immigration status if the probability has been established that the person had crossed the internal Schengen border.  (Id.)