Regular procedure

Author

Croatian Law Centre Visit Website

General (scope, time limits)

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’s Department for international protection procedure has the obligation to take a decision on the application for international protection 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 may be exceptionally prolonged for additional 9 plus 3 months. It may be extended for a further 9 months if:

• The application includes complex facts and/or legal issues;
• A large number of third-country nationals or stateless persons are requesting international protection at the same time; or
• 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.[2]

At the beginning of 2019, the Ministry of Interior informed the Croatian Law Centre that they do not have exact data on the duration of the first instance procedure as the Ministry does not keep such records, but stressed that most of the cases are processed within the prescribed deadlines, which vary from 6 to 21 months according to the LITP. The Ministry also indicated that they do notify applicants when the decision can be expected.[3] In practice, procedures exceeding the 6-month period were observed in previous years, but no information is available since 2019.

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.[4]

Prioritised examination and fast-track processing

Applications by unaccompanied children are prioritised as specified by the LITP.[5] Additionally, an application which may be approved on the basis of the established facts also has priority in decision-making.[6]

According to the Ministry of Interior, priority in the decision-making process is given unaccompanied children and persons with special procedural or reception needs.

Personal interview

After a short initial interview conducted by the officials from the Reception Centre for Applicants for International Protection for the purpose of lodging an application, a substantive interview is conducted by the Department for international protection procedure 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. During the interview, the applicant is obliged to present all circumstances relevant to the application for international protection, 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 international protection.[7]

If possible, applicants shall be provided ex officio with a translator/interpreter of the same sex in order to ensure a full explanation of the reasons for the application or for other justified reasons.[8] However, there is no information to what extent is this implemented in practice.

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
• When the admissibility of a subsequent application is being assessed.[9]

The Ministry of Interior reported at the beginning of 2019 that they do not keep records on cases in which a decision was taken without an interview. This practice is likely to have continued, although official information is not available.

The LITP provides that the applicant shall give reasons if they refuse 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.[10]

All interviews are conducted by the caseworkers of the Department for international protection procedure within the Ministry of Interior, who are also responsible for taking decisions on the application.

Interpretation

Most applicants are interviewed in practice. According to the LITP, the presence of an interpreter during the personal interview is required in case an applicant does not understand the language in which the procedure is conducted. There is no specific code of conduct for interpreters in the context of procedure for international protection, 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. The Ministry shall conclude an agreement with a translator/interpreter if:

(a) It is assessed that he or she has good knowledge of the Croatian language in writing and speech;
(b) It is assessed that he or she has good knowledge of the language for which he or she is being engaged;
(c) 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;
(d) 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.

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.

The LITP prescribes that interpretation can be provided by means of electronic telecommunications or audio-visual equipment.

Recording and transcript

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 the past 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

Appeal before the Administrative Court

Decisions of the Ministry of Interior may be challenged before the Administrative Court.[15] According to the law, the time limit for an applicant to lodge the lawsuit to the Administrative Court (which refers to the “appeal”) in the regular procedure is 30 days after the delivery of the decision of the Ministry of Interior.[16]

In the Croatian Law Centre’s experience, there is no information specifying that applicants face obstacles to appealing a decision in practice, although some issues arise with regard to legal assistance (see Legal assistance).

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). As documented in the previous updates of this AIDA country report, several trainings have been organised by the Croatian Law centre with the financial support of UNHCR since 2016.

In 2022, the training of Administrative court judges, financially supported by UNHCR, was held. The topic of the training was Administrative judicial protection of selected rights of applicants for international protection and persons granted international protection. A total of 15 judges and judicial advisors from the Administrative courts in Zagreb, Osijek and Rijeka and High Administrative Court participated at the training.

The court holds a hearing in the presence of the applicant in the majority of cases. Exceptions may occur when the applicant’s whereabouts are unknown. Interpreters are provided and paid by the state and available during the administrative dispute. The hearings are not public. In 2021, the Law on Administrative Disputes was amended introducing inter alia the possibility for the court to carry out the hearing remotely through the use of appropriate audio-visual devices.[17]

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.[18] 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 lawsuit is dismissed as inadmissible (and therefore not decided on the merits), rejected (i.e. decided negatively on the merits), or allowed. If the lawsuit is allowed, 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.

Onward appeal before the High Administrative Court

Applicants may lodge a further appeal against the Administrative Court decision before a High Administrative Court. According to the Law on Administrative Disputes, the High Administrative Court shall reject the appeal as unfounded and uphold the first-instance judgment (i.e. the judgment of the Administrative Court) when determined that there are no reasons for the judgment to be challenged or that the reasons do not affect the adoption of a different decision. In addition, the High Administrative Court shall annul the first-instance judgment and shall solely remedy the deficiencies and resolve the matter by issuing a judgment if it determines that the administrative court has committed a substantial violation of the rules of court procedure, has erroneously or incompletely determined the factual state or has inaccurately applied the substantive law.[22]  This means that the High Administrative Court can decide on the merits and can grant international protection.

This appeal, however, does not have suspensive effect.[23] During 2022, the High Administrative Court received 19 appeals in international protection cases:

Source: High Administrative Court, 13 January 2023

As indicated above, the large majority of appeals were also rejected by the High Administrative Court.

Legal assistance

Legal assistance at first instance

The LITP provides for the possibility of legal information and counselling at first instance procedure before the Ministry of Interior.[24] 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.

A public call under the AMIF fund for legal aid providers was published by the Ministry of Interior in September 2021.[25] The Croatian Law Centre (CLC) was selected in 2022 as organisation responsible for providing legal counselling at first instance until the end of 2022. The legal counselling activities entailed provision of: general legal information related to the procedure for granting international protection, legal information on the right to work and the right to free legal aid to applicants for international protection, legal and procedural information on the granting of international protection related to the specific application for international protection, information on stage of submitted application for international protection, the  explanation of reasons why the application for international protection  was rejected and the possibility of using a legal remedy. Under the project  informative materials and brochures on the ways and conditions of exercising the right to legal counselling were prepared, and a mobile application on the main features of the procedure for granting international protection in the Republic of Croatia and the ways of exercising the rights of applicants for international protection in practice was developed. The same information as in mobile application, are available on web: https://rhprotection.mup.hr/hr/.

In 2022, CLC implemented the project “Legal Assistance and Capacity Building for Access to Territory and Asylum in Croatia” with the role of implementing partner and with the financial support of the UNHCR. The provision of legal information to targeted groups of beneficiaries including applicants for international protection, was usually provided by telephone, mobile applications (WhatsApp) and e-mail or in CLC’s office.

In 2020 and 2021, CLC implemented the project “Croatian Lawyers Asylum Network (CALN), aimed at building a network of lawyers who are working in the field of asylum and migration, financed through the project “STEP UP Fond–capacity-building for NGO on refugee protection and inclusion” and led by the Dutch Council for Refugees. The project ended on 31 May 2021. Within the mentioned project, an online platform was launched with the aim of connecting all actors who provide legal assistance and support to applicants for international protection and beneficiaries of international protection. The aim of the platform is to use it as a virtual space for the exchange of legal opinions, practical challenges and problems observed in legislation.

Centar for Peace Studies (CPS)[26] also provided legal support to applicants for international protection by telephone, mobile and e-mail or in CPS ‘s office.

Legal assistance in appeals

In practice there are no obstacles to accessing attorneys, as applicants are informed about their right to free legal assistance. In practice when a decision is delivered to applicants, they are also given the list of providers of free legal aid from which they can choose an attorney or lawyer from NGO, who are then notified by the Ministry of Interior. Attorneys and lawyers from NGO organise the interpreter for the appointment and then inform the Ministry of Interior.

The Administrative Court shall decide on the right to free legal assistance, and the amount of costs of legal assistance.[30] 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 applicant, 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 applicant on the other side. In practice that means that at the beginning of the first instance procedure, the applicant has to specify, by completing a form provided to them, if they carry any valuables with them, which is rarely the case.

In previous years it was emphasised that this system of granting the right to legal aid at the end of the procedure is unfair as the full burden and risk is shifted to the provider of free legal aid. If, for any reason, the court does not endorse free legal aid, the provider will not receive anything and has completed the work without payment. This is still considered problematic in 2020 as reported by one attorney,[31] however no such observations were reported in 2021 and 2022.

The High Administrative Court took the view that free legal aid under the LITP covers only the composition of the lawsuit and the hearing, and not the composition of any further submissions which are sometimes needed, which also means that for such legal actions attorneys are not reimbursed.[32] There is no information available whether this practice has changed in the course of 2022.

Moreover, the appeal to the High Administrative Court is not covered by free legal aid under the LITP, although it is a logical next step. In addition, the Attorneys Act requires from attorneys to continue representing clients up to 30 days after the termination of the power of attorney, if there is a risk that a client may be harmed. So since there is a contradiction between the provisions of the Attorneys Act and the provisions of the LITP which regulate free legal aid, attorneys have to deal with this in a way that prevents possible harm for a client and to proceed according to the Attorneys Act, which means that they are writing and submitting appeals to the High Administrative Court, without being paid for their work.[33]

The LITP also states that the providers of free legal aid must inform the Ministry of Interior without delay of the bringing of a lawsuit 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.[34] 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.[35]

[1]   Except for exclusion cases.

[2]   Article 40 LITP.

[3] Information provided by the Ministry of Interior, 28 January 2019.

[4] Article 40 LITP.

[5]  Article 17(9) LITP.

[6]  Article 38(2) LITP.

[7]  Article 35(2) LITP.

[8] Article 14(3) LITP.

[9]  Article 35(8) LITP.

[10]  Article 35(6) LITP.

[11] Article 14(2) LITP.

[12] Article 13 LITP.

[13] Decision on the allocation of funds for the implementation of the project “Interpretation and expansion of the network of interpreters in the procedure for granting international protection”, 13 July 2020, available in Croatian at: https://bit.ly/3x39GyF.

[14]  This refers only to the average processing time at the Administrative Court of Zagreb in 2022. Waiting times may vary at other Courts. Nevertheless, in 2022, 35 out of the 36 lawsuits were dealt by the Administrative Court of Zagreb.

[15]  Article 32(2) LITP.

[16] Article 24(1) Law on Administrative Disputes.

[17] Article 37 paragraph 2 of the Law on Administrative Disputes prescribes that the hearing is, as a rule, held in the court building. The court can determine that the hearing be held at a distance. No appeal is allowed against this decision.

[18] Article 33 Law on Administrative Disputes.

[19] Administrative court in Rijeka reported that one case was received in 2022, but due to lack of jurisdiction, it was referred to the competent Administrative Court in Zagreb for further proceedings.

[20] This case is counted under 35 cases listed for Administrative Court in Zagreb.

[21] The total number is reduced to 1 due to fact that Administrative Court in Rijeka referred the case to Zagreb.

[22] Article 74 (1) (2) Law on Administrative Disputes.

[23] Article 51(3) LITP.

[24] Article 59(3)-(5) LITP.

[25] Public call in Croatian available at: https://bit.ly/3pBuqeK.

[26] Information provided by Centre for Peace Studies, 18 January 2023.

[27] Article 60(2) LITP.

[28] Article 60(1) LITP.

[29] Article 60(4) LITP.

[30] Article 60(3) LITP.

[31]  Information provided by an attorney-at-law, 26 January 2021.

[32] Information provided by an attorney-at-law, 3 January 2018.

[33] Information provided by an attorney-at-law, 2 January 2018.

[34] Article 60(5) LITP; Article 11(8)-(9) Ordinance on free legal aid in the procedure of granting international protection.

[35] Article 11(8)-(9) Ordinance on free legal aid in the procedure of granting international protection.