The Ombudsman dealt with an allegation of discrimination in one of the administrative units, to which the affected persons, a Slovenian citizen and a Nigerian citizen, turned to for information about entering into marriage. On this occasion, the registrar explained to them that in case of registration of the marriage, she would introduce a special assessment procedure according to Paragraph 4 of Article 30 of the DZ, which she justified by the fact that she had not often met Nigerians in the past. According to the Ombudsman, the described response of the registrar was inadequate and raises concerns about the existence of prejudices of a racist nature. It also emerged from the case that the registrar's handling of photocopies of the victim's document resulted in a violation of his right to the protection of personal data. According to the Ombudsman, the combination of both circumstances probably had the effect of dissuading the parties from entering into marriage (at least in this administrative unit).

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The Ombudsman dealt with an allegation of discrimination in one of the administrative units, where a citizen of Slovenia and a citizen of Nigeria reported, because they allegedly needed information about which documents they needed to enter into marriage. The official in charge of family affairs is said to have reviewed the documents of the affected person and, upon finding that he was an applicant for international protection, remarked that "she had already had three Nigerians this week" and that "there is something suspicious here" and that it seems "as if they are in collusion with each other", as a result of which "she will send them all for questioning". She allegedly photocopied his passport and sent it to the client, who were said to be shaken by what was described. Later, they actually got married, but in another administrative unit.

The Ombudsman turned to the relevant administrative unit, which made a special effort to explain to him how the special assessment procedure according to Paragraph 4 of Article 30 of the Family Code (DZ) is regulated and how the authority understands and presumably implements the aforementioned provision.

A special assessment procedure according to Paragraph 4 of Article 30 of the DZ is carried out if, at the time of application, there are reasons to suspect that two persons intend to enter into a marriage for the purpose of obtaining a residence permit or citizenship. Already on the basis of the linguistic interpretation of the mentioned provision, it can be concluded that the reasons for suspicion must be given when registering the marriage. Reasonable suspicion must relate to the questionable intention of the specific persons who report the conclusion of the marriage. The existence of grounds for suspicion at the time of application is a condition for carrying out a special assessment procedure.

The DZ does not specify how to understand the content of "reasons for suspicion", as it is a proof standard that must be filled with more concrete content by administrative law and administrative judicial practice. However, the Ombudsman points out that procedural standards of evidence always act as guarantees that – if they are correctly applied in the process – prevent arbitrary and disproportionate interference with human rights. The prescribed evidentiary standard, at which it is permissible to use a measure that interferes with human rights, is a certain minimum probability of prohibited conduct, demonstrated by the body that proposes or implements the measure. The demandingness of the standard of proof for interference with human rights is a condition assessed within the proportionality test; in principle, the standard of proof should be higher or more demanding for more invasive interventions in human rights and vice versa. Since the evidentiary standard is a guarantee intended to protect human rights, according to the Ombudsman, the authority must be particularly careful when assessing the existence of this condition.

The DZ stipulates that an official must have "reasons to suspect" the questionable intentions of specific persons who report the conclusion of marriage. "Reasons for suspicion" in principle contain a higher degree of probability than mere "suspicion". According to the Ombudsman, the evidentiary standard "reasons for suspicion" is moderately demanding, it contains at least the requirement that an official reasonably (rationally) substantiates the likelihood of a questionable intention on the part of persons reporting to enter into marriage. The execution of a special assessment procedure is a strong intrusion into the privacy of the persons who report the conclusion of marriage. Merely undemanding or minimal suspicion cannot be sufficient for an invasion of privacy, which means questioning even very intimate circumstances of an individual's life. The term "reasons" (for suspicion) indicates that the official must be able to reasonably justify his suspicion, which means that he cannot base it on bare intuition, emotions, or non-rational approaches. This also means that mere probabilistic inference cannot be sufficient for the introduction of a special assessment procedure (for example, an official would conclude on the probability of a disputed intention of a certain foreign nationality who reports the conclusion of a marriage, based on the calculation that in the past the intention of a fictitious conclusion of marriage was established for a certain proportion of persons of the same nationality).

In the assessment procedure, it is then established whether the two persons who registered the marriage really have a questionable intention to enter into the marriage. Since the intention of a certain person is a subjective circumstance, it cannot be determined directly. Determining such circumstances in legal proceedings is usually a special challenge, as they are established indirectly, with the help of reasoning based on other objectively perceptible and proven circumstances. In doing so, the authority must be careful not to fall into stereotyping and making decisions based on prejudices, which can also be discriminatory. The disputed intention of the couple declaring the marriage can thus be indirectly justified by the official with indicators on the basis of which it is possible to reasonably infer the existence of such an intention. These indicators are set, for example, in the EU Council Resolution of 4 December 1997 on measures taken against fictitious marriages.[1] Indicators that an official can refuse to enter into a marriage must be established in a specific case with a sufficiently high degree of probability and proven in a special assessment procedure. This level of probability is a certainty, since Article 8 of the ZUP clearly stipulates that in the (administrative) procedure, the true factual situation must be established and, for this purpose, all facts important for a legal and correct decision must be established. On the basis of the likely proven facts, the body can only make a decision when the law so provides – but the law does not provide for a special assessment procedure according to Paragraph 4 of Article 30 of the DZ.

In the assessment procedure, the initial reasons for suspecting that the two persons have a questionable intention must, with the help of the evidence and established facts, grow into the certainty that the two persons have the intention of entering into a fictitious marriage – only on such a basis can the official refuse to enter into a marriage, in which case the decision must be adequately justified. In this regard, according to the Ombudsman, he must also adequately justify the reasons for suspicion, as these are a legal condition for the introduction of a special ex officio investigative procedure.

Based on the described understanding of the regulation of the special investigative procedure, the Ombudsman could not agree with the administrative unit's explanation that (only) by enabling the defence in the special investigative procedure, the right to equal treatment and protection against discrimination is guaranteed to the participants. Of course, the parties can claim discrimination in their defence, but the substantive condition of the grounds for suspicion, which must relate to the disputed intention of the specific parties, and the obligation to justify it, constitute a guarantee that the decision to initiate a special assessment procedure is not based on insufficient or inadequate (for example, discriminatory) reasons.

For the introduction of a special assessment procedure, two prerequisites must therefore be met: the formal prerequisite is that the two persons have registered the marriage in the first place; the content assumption is the existence of grounds for suspicion, which must relate to the disputed intention of specific persons.

In the case under consideration, the first assumption was not given, since the affected persons did not report the marriage to the address administrative unit, but only came to get information about it. It is therefore unusual that it was clear both from the statements of the complainant and from the explanations of the administrative unit that a situation arose in which the registrar explained to the affected parties her past experiences with persons from Nigeria and based solely on this (orally) justified the doubt about the authenticity of their marriage and the need to carry out a confirmation procedure if she were to indeed report the marriage. The above cannot be interpreted otherwise than that the registrar prejudiced the party by concluding that their intention was disputed solely because of the nationality of one of the partners who were interested in entering into marriage. The complainant detailed what the registrar told the affected people when they came to the administrative unit for information – she allegedly mentioned that she had already dealt with three Nigerians that week and that it was suspicious. The administrative unit also did not deny the described response of the registrar, but rather tried to explain that the registrar could consider clients of the same nationality with whom she recently dealt as an indicator on the basis of which the assessment procedure can be initiated.

According to the Ombudsman, the described explanation of the administrative unit is not convincing. It follows from the judicial assessment that an index is indirect evidence, an evidentiary fact that is not legally relevant in itself, but is established by an authority or a court, because on the basis thereof it concludes about the (non)existence of a fact that is legally relevant. Evidence can only lead to the establishment of legally relevant facts with the help of the rules of logical reasoning.[2] The fact that the registrar has not yet met many persons from Nigeria who would enter into marriage with a Slovenian citizen in Slovenia cannot indirectly point (even not only as an indication) to the disputed intention of two specific persons who report to the administrative unit. This kind of experience of the registrar is not in any way an indication of a possible controversial intention of the persons who turn to her for the purpose of concluding a marriage. According to the logic of things, it is not possible to conclude the likelihood of a controversial intention of certain persons based on the past experience of the registrar, which refers only to the frequency of her meeting with persons from Nigeria. This is clearly not even about the registrar having any negative experiences with the citizens of the exposed African country. The mere fact that the registrar has not met a large number of persons from Nigeria in her work in the past cannot be sufficient grounds for suspicion, in terms of Paragraph 4 of Article 30 of the DZ, that the two specific persons intend to enter into a fictitious marriage. There is no logical connection between the mentioned factual circumstance (rare meeting with persons from Nigeria) and the conclusion (suspicion of fictitious intention of specific parties).

Since the affected persons contacted the administrative unit only for information and did not report the conclusion of marriage on that occasion, there is also no basis for photocopying the identity document of the affected person. The administrative unit explained that the registrar subsequently destroyed the photocopies. The Ombudsman can accept the explanation that the registrar photocopied the document because she thought that the parties would register the marriage on that occasion, but it would then be most appropriate for her to hand over the photocopies to the client when she realised that the registration of the marriage would not take place, or before the parties left the administrative unit. Although the registrar may have really thought that they would register their marriage while the two clients were with her, she must have realised that they would not do so by the time they started walking out of her office at the latest. If she was in doubt, she could also have explicitly asked them whether they would register the marriage or not.

From the statements of the complainant and the explanations of the administrative unit, it emerged that the registrar kept photocopies of the parties' passports even after she should have known that they would not register the marriage. Since the parties did not register their marriage, no proceedings were initiated. The official person could not even place the photocopied document in the case file of any of the parties. The Ombudsman agrees with the complainant that photocopying the document and withholding it, without explaining to the parties what the registrar would use the photocopies for, could in the given circumstances also have had an intimidating effect or deterred the party from registering the marriage at this administrative unit. Last but not least, the parties later actually entered into marriage elsewhere.

It should also be remembered that photocopying an identity document counts as personal data processing, and the authority must have a clear legal basis for this. If the client comes to the authority only for information and if no official procedure is initiated, there is in principle no legal basis for this type of processing. The destruction of personal data also counts as processing.[3] The administrative unit did not respond to the Ombudsman's question about the legal basis of data processing. The Ombudsman therefore assumes that the registrar's handling of photocopies of the victim's document resulted in a violation of his right to the protection of personal data.

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In the case, the affected persons, a Slovenian citizen and a Nigerian citizen, contacted the registrar at the administrative unit in order to obtain information about the conclusion of the marriage. It follows from the case that they did not come to the administrative unit to register a marriage, but to obtain information. On this occasion, the registrar explained to them that if they reported the marriage, she would initiate a special assessment procedure according to Paragraph 4 of Article 30 of the DZ, which she justified by the fact that she had not often met Nigerians in the past. According to the Ombudsman, the registrar's response was inadequate and raises concerns about the existence of prejudices of a racist nature. It also emerged from the case that the registrar's handling of photocopies of the victim's document resulted in a violation of his right to the protection of personal data. According to the Ombudsman, the combination of both circumstances probably had the effect of dissuading the parties from entering into marriage (at least in this administrative unit).

On this occasion, the Ombudsman also decided to address a proposal to the Ministry of Labour, Family, Social Affairs and Equal Opportunities, that, after examining his findings and positions presented above, it should assess whether, for the purposes of the proper implementation of Paragraph 4 of Article 30 of the DZ, on the basis of Article 49 of the State Administration Act (ZDU-1), it would be reasonable to prepare an appropriate direction or instruction for administrative units. The Ministry decided not to consider the Ombudsman's proposal. 2.0-5/2024

[1] This also follows from the Draft Family Code (EVA: 2005-2611-0024): "In case of suspicion that it is the so-called conclusion of a fictitious marriage, or that two persons wish to enter into a marriage exclusively or primarily so that one or both of them will obtain a residence permit in the Republic of Slovenia or the citizenship of the Republic of Slovenia, a special assessment procedure is carried out and the possibility of refusing them to enter into such a marriage. In the process of determining whether it is for the purpose of entering into a marriage that the future spouses wish to enter into for reasons that are not in accordance with this Code, i.e. solely for the purpose of obtaining a residence permit or acquiring Slovenian citizenship, in terms of indications as to whether it is such a purpose, the administrative unit takes into account the Resolution of the Council of the EU of 4 December 1997 on measures taken against fictitious marriages (Official Journal of the European Communities, No. 382 C of 16 December 1997, pp. 1 to 2). Appeals against such a decision are decided by the ministry responsible for the family."