Regular procedure

Croatia

Author

HPC Croatia

About text

General (scope, time limits)

The Asylum Department of the Ministry of Interior is an administrative authority specialised in decision-making in procedure for international protection. Croatia has a single asylum procedure: the Asylum Department examines whether the applicant fulfils the eligibility criteria for refugee status and, failing that, subsequently examines whether the applicant is eligible for subsidiary protection. The civil servants working in the Asylum Department conduct interviews with applicants for international procedure and, on the basis of all the relevant facts and circumstances arising from the application, the applicant’s position and personal circumstances (including sex and age) based on the testimony presented during the interview, the evidence submitted and available country of origin information, as well as the activities of the asylum seeker after leaving the country of origin to assess whether these activities might expose the asylum seeker to persecution or serious harm if they are returned to that country, issue a decision on the asylum application. The existence of an internal protection alternative in the country of origin, and the possibility for the asylum seeker to obtain the protection of his or her alleged country of nationality, are also considered when taking a decision.1

When deciding on the credibility of the asylum seeker’s statements, the person conducting the procedure should abide by the principle of the benefit of the doubt.2

The first instance decision can be a decision by which the Ministry of Interior:

  • Grants asylum;

  • Grants subsidiary protection;

  • Rejects the application if the applicant does not meet the conditions for asylum and subsidiary protection;

  • Rejects the application if the conditions are met for exclusion;

  • Rejects the application as manifestly unfounded;

  • Dismisses an asylum application as inadmissible; or

  • Suspends the procedure.

The Ministry of Interior (i.e. the Asylum Department) has the obligation to take a decision on the application for asylum within 6 months from its lodging. If no decision can be rendered within 6 months, the applicant shall be informed of this in writing and at his or her request shall be provided with information about the reasons for the failure to respect the time limit and about the time needed before which he or she may expect a decision. The 6 month time limit exceptionally may be prolonged for additional 9 plus 3 months. It may be extended for a further 9 months if:

  1. The application includes complex facts and/or legal issues;

  2. A large number of third-country nationals or stateless persons are requesting international protection at the same time; or

  3. The applicant, through his or her actions, contrary to his or her obligations as applicant, causes the time limit to be extended.

However this time limit may be extended for a further 3 months exclusively in order to ensure the complete consideration of the application.

The Ministry of Interior indicated in July 2016 that the duration of the asylum procedure is approximately 3-4 months.3 However, in March 2017, the Ministry informed the Croatian Law Centre that they do not have exact data on the duration of the first instance procedure, but stressed that most of the cases are processed within the prescribed deadlines, which according to the LITP vary from 6 to 21 months.4

However during the 2016, a trend of prolonged procedures, exceeding the 6-month period, has been observed by the Croatian Law Centre. This may be explained by the fact that during 2016, there was an exponential increase in numbers of asylum seekers compared to previous years, while the capacities of the Ministry of Interior, according to the knowledge of the Croatian Law Centre, have stayed the same. Additionally, many experienced decision-makers (caseworkers) stopped working at the Asylum Department and were replaced by caseworkers who lacked experience and were not sufficiently, if at all, trained. However, the Ministry of Interior informed the Croatian Law Centre that in February 2017 a public call was announced for the recruitment of an additional 30 employees in the Reception Centre for Asylum Seekers and the Asylum Departement.5

Although no delays were reported in the organisation of interviews for the purpose of lodging asylum applications in the course of 2016 by applicants themselves, most of the applicants approaching the Croatian Law Centre for legal information, complained of waiting too long for the second substantive interview and later on the for delivery of the first instance decision.

If it is justifiably to be expected that no decision will be rendered on the application within the time limits referred above on account of the temporary unsafe situation in the country of origin, the Ministry shall periodically verify the situation in the country of origin and inform the applicant and the European Commission within a reasonable time of the reasons for failure to render a decision. In that case, a decision must be rendered no later than within 21 months from the day the application is lodged.6    

 

Prioritised examination and fast-track processing

Applications by unaccompanied children are prioritised as specified by the LITP.7 However it seems that delays in the organisation of interviews for the purpose of lodging asylum applications have occurred in 2016, as guardians were not appointed in time to unaccompanied children.8

Additionally, an application which may be approved on the basis of the established facts also has priority in decision-making.9 According to the Ministry of Interior, special attention is also given to cases of applicants who need special procedural or reception guarantees as well as to cases of applicants relocated from Italy and Greece. However, to the Croatian Law Centre’s knowledge, problems arise in the identification and recognition of special procedural or reception guarantees.     

 

Personal interview

After a short initial interview conducted by the officials from the Reception Centre for Asylum Seekers Reception Centre for  Asylum Seekers for the purpose of lodging an application, a substantive interview is conducted by the Asylum Department of the Ministry of Interior. According to the LITP, when the application has been lodged, the Ministry of Interior shall, as soon as possible, interview the applicant. However, due to the increase in applications in 2016, many applicants have complained to the Croatian Law Centre’s lawyers that they have to wait too long for the interview. During the interview, the asylum seeker is obliged to present all circumstances relevant to the asylum application, truthfully answer all questions, and submit all available evidence to support the application, i.e. give credible and convincing explanations of all the reasons behind the application for asylum.10

The interview may be omitted:

  • When a positive decision on application may be taken on the basis of the available evidence;

  • In cases when an applicant is unfit or unable to be interviewed, owing to enduring circumstances beyond  his or her control; or

  • The admissibility of a subsequent application is being assessed.11

The novelty introduced by the LITP is that applicant shall give reasons if he or she refuses to cooperate with the official conducting the interview. The Ministry shall consider the reasons and shall inform the applicant orally for the record of its decision. 12

All interviews are conducted by the civil servants of the Asylum Department within the Ministry of Interior, who are also responsible for taking decisions on the application. Most applicants are interviewed in practice. According to the LITP, the presence of an interpreter during the personal interview is required in case an asylum seeker does not understand the language in which the procedure is conducted.13 In practice this means that the interpreter is present in all cases, with the only exception of those in which the asylum seeker understands Croatian (for example asylum seekers who are nationals of a neighbouring country such as Bosnia and Herzegovina).

In the past, a few asylum seekers have complained to the Croatian Law Centre about the quality of translation. There is no specific code of conduct for interpreters in the context of asylum procedures, nor were standards prescribed in the past with regard to the qualifications of interpreters in the procedure for international protection. The LITP prescribes conditions that have to be fulfilled in order for a contract to be signed between the Ministry of Interior and an interpreter.14 The Ministry shall conclude an agreement with a translator/interpreter if:

  1. It is assessed that he or she has good knowledge of the Croatian language in writing and speech;

  2. It is assessed that he or she has good knowledge of the language for which he or she is being engaged;

  3. It is established that no circumstances exist that could represent a hindrance to employment in the civil service pursuant to the regulations on employment in the civil service;

  4. It is established that no security hindrances exist after the conducting of a basic security check pursuant to the regulations on security checks.

In addition, the interpreter must be reliable, impartial and must interpret truthfully and accurately. He or she is obliged to act pursuant to the regulations governing the protection of personal data, and especially may not disclose the data such as personal and other information collected during the procedure.

An additional novelty which entered into force with the LITP is that, if for objective reasons it is not possible to provide an interpreter for a specific language, the Ministry of Interior shall request assistance from another Member State of the European Economic Area. However, according to the Ministry of Interior this possibility has not been used in 2016.15

Up to now, interpreters were not professionally trained and interpretation is not done by accredited interpreters in the majority of cases. Usually, persons who simply possess the requested language skills are contracted by the Ministry of Interior. Nevertheless, there is a lack of interpreters, especially for some specific languages. For example, asylum seekers from African countries are often interviewed in English or French, languages they are considered as being able to understand. Asylum seekers are asked at the beginning of the interview if they understand the interpreter.

In the past there was also a possibility for the interview to be conducted through video conferencing (through the GDISC Interpreters Pool Project and later also in cooperation with the Dutch Immigration and Naturalisation Service). However, such a possibility is not available at the moment.16 The LITP prescribes that interpretation can be provided by means of electronic telecommunications or audio-visual equipment.

During the interview, verbatim minutes of the interview are drafted. Once the interview is finished, the interpreter translates the minutes to the applicant who then has a possibility to make corrections, interventions, as well as to add information if needed. Generally, in practice, the quality of the minutes is not considered problematic, although there were cases in which minutes were not considered to be of sufficient quality by the applicants. It also depends on the interpreter whether he or she summarises the answers (which they should not do), or translates each sentence of the applicant (which is how they should translate). By signing the minutes, the applicant agrees with the content of the transcript.  

 

Appeal

Decisions of the Ministry of Interior may be challenged before the Administrative Court.17 According to the law, the time limit for an applicant to lodge an appeal to the Administrative Court in the regular procedure is 30 days after the delivery of the decision of the Ministry of Interior.18

Each asylum case is examined by a single judge. Judges are not specialised on asylum neither specifically trained in asylum law, although from time to time some trainings are organised for judges (usually by UNHCR and NGOs). In 2016, the Croatian Law Centre, in cooperation with the Judicial Academy and UNHCR, prepared two-day seminar for judges of 4 administrative courts (in Osijek, Rijeka, Split and Zagreb) and High Administrative Court.

In the Croatian Law Centre’s experience, there is no information specifying that in practice applicants face obstacles to appealing a decision.

The court holds a hearing in the presence of the asylum seeker in the majority of cases. Exceptions may occur when the asylum seeker's whereabouts are unknown; in previous years this occurred in some Dublin cases, but it seems that the majority asylum seekers who are in a Dublin procedure are invited to hearings now. Interpreters are provided and paid by the state. So far, to the knowledge of the Croatian Law Centre, interpreters were always available during the administrative dispute. The hearings are not public.

The Court can freely assess the evidence and establish the facts (requesting also further evidence if needed) – without being bound by the facts established in the procedure of the Ministry of Interior – while determining refugee status, although it takes them into account when deciding. Evidence, in terms of Law on Administrative Disputes, includes in this case documents, interviews of the parties,  experts' opinions and findings and other means of collecting evidence, and the court presents it according to the rules for presenting evidence in the civil procedure.19 In general, there is no time limit set in law for the Administrative Court to make a decision in the regular procedure.

The outcomes of the administrative dispute can be that the appeal is dismissed (and therefore not decided on the merits), rejected (i.e. decided negatively on the merits), or adopted. If the appeal is adopted, the Court can either refer the case back to the Ministry of Interior for the review procedure or it can change the decision by itself, meaning that the result is granting refugee or subsidiary protection status. The court decisions are not publicly available.

In practice, attorneys have informed the Croatian Law Centre that Administrative Courts in the majority of cases have confirmed the Ministry of Interior’s decisions, both in international protection cases and Judicial Review of Detention cases

  • The Administrative Court in Rijeka received only 2 asylum appeals in 2016 and both cases were rejected;20

  • The Administrative Court in Osijek has not received any related case during 2016;21

  • The Administrative Court in Split received 7 appeals and in 3 cases appeals were rejected, in 1 case accepted, while appeals were withdrawn in 3 cases;22

  • At the time of writing no data have been received from the Administrative Court in Zagreb which has handled majority of cases.

 

Onward appeal

Following the amendments to the Law on Administrative Disputes adopted in December 2014, applicants may lodge a further appeal against the Administrative Court decision before a High Administrative Court. This appeal, however, does not have suspensive effect.23 There is no publicly available data on how this was functioning in practice.24 According to information provided by High Administrative Court, during 2016 High Administrative Court received 29 asylum appeals and decided on 33 asylum cases:

High Administrative Court decisions on asylum appeals: 2016

Decision

Number

Percentage

Positive decision

3

9.1%

Negative decision

26

78.8%

Dismissal

1

3%

Discontinuation

2

6%

Pending

1

3%

Total

33

100%

Source: High Administrative Court, 30 January 2017.       

 

Legal assistance

The right to free legal assistance in procedures is regulated by LITP. There is also a general procedure and system of free legal aid which is regulated by the Law on Free Legal Aid, but applicants for international protection can only benefit from this law in some procedures for which legal aid is not provided for by the specific law (for example LITP).

 

First instance procedure

Free state-funded legal aid under the Law on Asylum was not available during the first instance asylum procedure, but only before the Administrative Court. However, with the entry into force of the LITP, this changed, not in terms of representation in the first instance procedure but in terms of possibility for legal information and counselling.25 The LITP specifies that  applicants should, at their request, be provided with legal and procedural information on the approval of international protection, taking into account the circumstances of the specific case, in a language which it may be reasonably be presumed that they understand and in which they are able to communicate. The right to counselling should be provided by organisations working to protect the rights of refugees or by attorneys with whom the Ministry shall conclude an agreement on the provision of legal counselling. An applicant who has no financial resources or things of significant value that enable him or her to have an appropriate standard of living shall have the right to legal counselling. However at the moment it is still not clear how this would be implemented in practice. As of February 2017, the Ministry of Interior has not published a public call for providers of legal counselling, and there is no available information on when it could be expected.

In practice, the majority of asylum seekers need additional legal information about their status, asylum claim and right and obligations in the first instance procedure before the Ministry of Interior.

Legal information and assistance are also provided by NGOs on a project basis, and primarily by the Croatian Law Centre as implementing partner of UNHCR, the Legal Clinic of the Law Faculty of the University of Zagreb, the Centre for Peace Studies and the Jesuit Refugee Service (JRS):

  • Lawyers of the Croatian Law Centre are present for free legal counselling once a week (Tuesdays) in the Reception Centre for Asylum Seekers in Zagreb, once or twice a month in the Reception Centre for Asylum Seekers in Kutina, and when needed  in the Reception Centre for Foreigners in Ježevo. A few times per month, depending on needs, the Croatian Law Centre’s lawyers provide legal counselling in the premises of the Croatian Law Centre. However, with regard to representation in the first instance procedure, they are not present at interviews, except in specific selected cases, provided that they are authorised by the applicant for legal representation. In practice there is greater need for free legal assistance in the first instance procedure, but unfortunately due to financial restrictions and lack of capacity, two lawyers from the Croatian Law Centre can represent only a very small number of cases.

  • The Centre of Peace Studies lawyer is available for legal counselling every second Wednesday in the Reception Centre for Asylum seekers in Zagreb and in Kutina when needed.26

  • The JRS lawyer provides legal information once a week in the Reception Centre for Asylum Seekers in Zagreb and once a week in the Reception Centre for Asylum Seekers in Kutina.27

  • Students of the Legal Clinic of the Law Faculty of the University of Zagreb students visit the Reception Centre in Kutina once a month in order to provide legal information to asylum seekers accommodated there, under the supervision of their academic mentor.28 They organise counselling only in English and, if somebody does not speak English, another asylum seeker may help with translation. Students work in a way that they collect the facts and questions and within three days they are obliged to send information to asylum seekers. From November 2016, students join the Croatian Law Centre’s lawyers in Reception Centre in Zagreb once a week in order for them to get insight into practice, collect information and gain knowledge and understanding on how to provide legal aid.

 

Appeal

According to the LITP, free legal aid includes assistance in the preparation of a law suit to the Administrative Court and representation before the Administrative Court i.e. in the first instance administrative court disputes,29 if requested by the applicant and foreigner under transfer, under the condition that they do not have sufficient financial resources or possessions of significant value.30 Legal assistance may be provided by attorneys at law and lawyers from organisations registered for providing legal assistance.31 In April 2016, a public call was announced, also allowing lawyers from NGOs to apply for the first time, so 3 Croatian Law Centre lawyers are also now on the list of providers of free legal aid for the procedure before Administrative Court.32

The Administrative Court shall decide on the right to free legal assistance, and the amount of costs of legal assistance.33 According to the Ordinance on free legal aid, the Administrative Court decides on the right to free legal assistance and takes into account the evidence on the financial status of the asylum seeker, which is obtained ex officio by the Ministry of Interior during the first instance procedure on the one side and by compiling the form by the asylum seekers on the other side. In practice that means that at the beginning of the first instance procedure, the asylum seeker has to specify, by completing a form provided to them, if they carry any valuables with them, which is rarely the case.

In practice there are no obstacles to accessing attorneys, as asylum seekers are informed about their right to free legal assistance and attorneys are notified usually by the Ministry of Interior. Attorneys organise the interpreter for the appointment and then inform the Ministry of Interior. However, it seems that in practice from time to time there are certain problems in regard to informing asylum seekers about the first contact with providers of free legal aid as there is no systematic and clear procedure how to inform the client about the arrival of attorney.

To the knowledge of the Croatian Law Centre, this provision was in the past considered problematic by attorneys representing applicants in the first instance administrative court disputes as in the past, practice has shown that in some cases where they represented applicants, filed a lawsuit and attended the hearing before Administrative Court, their costs were not reimbursed on the basis of the court's decision. It seems that this is not an issue any more, however the problem may arise when asylum seeker decides to withdraw the proceedings, as then the Ministry of Interior is not obliged to pay the provider of legal aid in that case,34 even if the legal aid provider has already spent a great amount of time and taken certain legal actions for the case.

In addition, one attorney informed the Croatian Law Centre that the High Administrative Court expressed in one of its decisions the view that travel costs in order for providers of legal aid to sign a power of attorney and have conversations with their client would not be recognised as travel cost – e.g. when a lawyer from Zagreb goes to the reception centre of Kutina – but would only recognise travel expenses for the arrival of the attorney to the hearing – e.g. when an attorney outside Zagreb comes to the hearing in Zagreb. This may be problem because for some distant Administrative Courts such as Rijeka, Osijek and Split, only attorneys from continental parts of Croatia are on the list, so it could happen that the costs exceed the total amount provided for the preparation of the appeal and representation, which an attorney reasonably would not accept. This would open up questions as to how the right to free legal aid would be exercised in practice in such cases.

One of the additional novelties in the LITP is that the providers of free legal aid must inform the Ministry of Interior without delay of the bringing of a claim before the Administrative Court and the date of delivery of the Court’s judgment. If a provider of legal assistance does not act in line with this obligation, the provider shall be deleted from the List of Providers of Free Legal assistance.35 The Ordinance on free legal aid prescribes that the provider should be first warned in writing and then deleted for the list if he or she has not complied with this obligation.36

 

  • 1. Article 27 and 28 LITP.
  • 2. Article 29 LITP.
  • 3. Information provided by the Ministry of Interior, 21 July 2016.
  • 4. Information provided by the Ministry of Interior, 2 March 2017.
  • 5. Information provided by the Ministry of Interior, 2 March 2017.
  • 6. Article 40 LITP.
  • 7. Article 17(9) LITP.
  • 8. Information provided by the Ministry of Interior, 2 March 2017.
  • 9. Article 38(2) LITP.
  • 10. Article 35(2) LITP.
  • 11. Article 35(8) LITP.
  • 12. Article 35(6) LITP.
  • 13. Article 14(2) LITP.
  • 14. Article 13 LITP.
  • 15. Information provided by the Ministry of Interior, 2 March 2017.
  • 16. Answer from the Ministry of Interior to the request for video conference translation in a particular case, dated 10 April 2014, and confirmed again at a meeting on 9 November 2015 and via letter on 2 March 2017.
  • 17. Article 32(2) LITP.
  • 18. Article 24(1) Law on Administrative Disputes.
  • 19. Article 33 Law on Administrative Disputes.
  • 20. Information provided by the Administrative Court of Rijeka, 15 February 2017.
  • 21. Information provided by the Administrative Court of Osijek, 1 February 2017.
  • 22. Information provided by the Administrative Court of Split, 1 March 2017.
  • 23. Article 51(3) LITP.
  • 24. Article 19 Amendments to the Law on Administrative Disputes.
  • 25. Article 59(3)-(5) LITP.
  • 26. Information provided by the Centre for Peace Studies, 13 February 2017.
  • 27. Information provided by JRS, 16 February 2017.
  • 28. Information provided by the Legal Clinic of the Law Faculty of the University of Zagreb, 10 February 2017.
  • 29. Article 60(2) LITP.
  • 30. Article 60(1) LITP.
  • 31. Article 60(4) LITP.
  • 32. The Croatian Law Centre has applied only for the Administrative Court of Zagreb.
  • 33. Article 60(3) LITP.
  • 34. Article 10(3) Ordinance on free legal aid in the procedure of granting international protection.
  • 35. Article 60(5) LITP; Article 11(8)-(9) Ordinance on free legal aid in the procedure of granting international protection.
  • 36. Article 11(8)-(9) Ordinance on free legal aid in the procedure of granting international protection.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti