Regular procedure

Croatia

Country Report: Regular procedure Last updated: 27/05/21

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.[3]

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.[4] In practice, procedures exceeding the 6-month period were observed in previous years, but no information is available for 2019 and 2020.However according to the knowledge of Croatian Law Centre as well as other organizations, this is still the problem in some cases.[5]

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]

According to the Ministry of Interior, priority in the decision-making process is given unaccompanied children, persons with special procedural or reception needs, as well as cases of persons resettled from Turkey.[8] The Ministry also reported that procedures in cases where applicants were detained in Transit Reception Centre in Tovarnik also had priority in 2018. No official information is available for 2019 and 2020. However, during the first lockdown from March to April 2020, manifestly unfounded cases were prioritised where the 6-months deadline was nearly met.

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.

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.[10]

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.[11] 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.[12]

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.[13]

The LITP provides that the 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. [14]

Employees of the Department for international protection procedure had  been working in teams from March to June 2020 due to the pandemic. During that period only vulnerable applicants for international protection were invited for personal interview (e.g. unaccompanied children, single mothers, disabled persons) and other prioritised cases. However, despite pandemic during the whole 2020, interviews were held in person.

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. In 2020, due to pandemic in some cases in the stage of lodging the application interpretation was done remotely via Skype.

 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 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.[20] 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.[21]

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). In 2017, with financial support from UNHCR, the Croatian Law Centre, in cooperation with the Judicial Academy and UNHCR, prepared a one-day seminar on the topic “Exclusion Clause” for judges of the administrative courts in Zagreb, Rijeka, Osijek and Split and the High Administrative Court. In 2018, the Croatian Law Centre, in cooperation with the Judicial Academy and UNHCR, prepared a one-day seminar funded by UNHCR on the topic “Vulnerable groups of applicants for international protection” for judges of the Administrative Courts in Zagreb, Rijeka and Split.[22] In 2019, the Croatian Law Centre organised a one and a half-day seminar on the topic “The burden and standards of proof in the administrative procedure and administrative dispute“ for judges of the Administrative Courts in Zagreb, Osijek and Split. The training was organised in cooperation with the Judicial Academy and UNHCR, and funded by the latter.

In 2020, the training of Administrative court judges, financially supported by UNHCR, was held on 1 October 2020. Due to the COVID-19 situation, and in agreement with the Judicial Academy and UNHCR, the training was held online in the form of a webinar. The topic of the webinar was “”Granting International Protection: Medical expertise in Administrative Procedure and Administrative Dispute”. A total of 22 participants were present at the webinar, among which five judges from the Administrative courts in Zagreb, Osijek and Split and one judge from Serbia.

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.

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.[23] 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 as inadmissible (and therefore not decided on the merits), rejected (i.e. decided negatively on the merits), or allowed. If the appeal 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.

Second instance decisions by Administrative Courts: 2020
Category Zagreb Rijeka Osijek Split Total
Accepted                     (international protection not granted) 7 0 0 0 7
Accepted (granted asylum) 1       1
Accepted – cases referred back to the Ministry of Interior- 2 times 1 0 0 0 1
Accepted – cases referred back to the Ministry of Interior 11       11
Rejected 103 1 0 0 104
Total 123 1 0 0 124

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.[26]  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.[27] During 2020, the High Administrative Court received 29 appeals in international protection cases:

Onward appeal statistics: 2020
Category Number
Appeals received 29
Appeals rejected 26
First instance judgment annulled 3
Total decisions            29

Source: High Administrative Court, 15 January 2021.

As indicated above, the large majority of appeals are 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.[28] 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.

In August 2018, the Ministry of Interior published a public call for providers of legal counselling i.e. for a project for providing legal advice in the asylum procedure. The Croatian Law Centre (CLC) was selected as organisation responsible for providing legal counselling for the period of 1 April 2019 to 31 March 2020.[29] The Project “Legal Counselling in the Procedure of Granting International Protection” was financed by AMIF and aimed at providing legal information on the procedure of granting international protection. State funded free legal aid for applicants for international protection before the Ministry of Interior ended on 31 March 2020. A new public call for providers of legal counselling was published in November 2020, and the deadline for project proposals was extended until December 2020. However the public call was annulled in March 2021. This means that there is currently no AMIF funding available for providers of legal counselling before the Ministry of Interior.

In 2020, the Croatian Law Center as an implementing partner and with the financial support of the UNHCR, implemented the project “Legal Support in the Asylum System”. Due to COVID-19, there have been changes in the way certain activities were performed. 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 compliance with all epidemiological measures and recommendations in the case of direct in person assistance.

In 2020, 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 was about to end on 30 April 2021, but was extended until the end of May 2021. Within the mentioned project, it is planned to launch an online platform with the aim of connecting all actors who provide legal assistance and support to applicants for international protection and beneficiaries of international protection. The platform will be used as a virtual space for the exchange of legal opinions, practical challenges and problems observed in legislation.

In 2020, Jesuit Refugee Service (JRS) reported that due to measures introduced to combat the spread of the COVID-19, legal assisstance was limited as the access to the Reception Centre in Zagreb was restricted.

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.

According to information received from an attorney in 2018, a clear procedure for the announcement of the arrival of lawyers in the Reception Centre for Applicants for international protection has been established in 2018.[35] In 2019, however, one attorney reported the lack of adequate rooms in the centre where attorneys could meet with their clients. Instead the visits took place in the lobby of the Reception Centre.[36] No such problems were reported in 2020,

The Administrative Court shall decide on the right to free legal assistance, and the amount of costs of legal assistance.[37] 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 recent years, the reimbursement of costs has been considered problematic by some attorneys representing applicants in Administrative Court disputes as there are no clear rules for some specific situations. One attorney reported issues arising in a case where the client did not inform her about the fact that that the client’s salary had increased (due to overtime hours etc). The same attorney reported a case where the client withdrew the lawsuit, through another attorney, without informing the initially chosen attorney. The initial attorney was thus not able to access the decision of the Administrative Court as the decision to suspend the administrative dispute was delivered to the other attorney, as a result of which the costs were not reimbursed to initially chosen attorney..[38] Another attorney, who did not face issues with reimbursements, highlighted the issue of the length of reimbursement[39], as these must be approved by Courts at the end of the court procedure and when the Ministry of Interior is informed that free legal aid was approved i.e when the provider of free legal aid submits the invoice to the Ministry of Interior in accordance with the decision of the administrative court. One attorney reported that courts do not approve the reimbursement of all the necessary costs such as travel costs.[40] There is no updated information available in 2020 as to whether these issues persisted.

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.[41]

The same attorney reported that the Ministry of Interior still continues to automatically issue a negative decision or decides to annul international protection in cases where the Security and Intelligence Agency (SIA) provides its negative opinion. However, there has been improvements observed in such cases, as certain information is nevertheless made available to the decision-maker and the applicant, which allows argumentation. Despite that, the evidence provided in in such cases is sometimes ignored. For example, in one case international protection was annulled because it was subsequently established that the applicant lied when applying for international protection about the essential circumstance that was the reason for granting protection. The applicant proposed different evidence, including a hearing from a witness, but the evidence was rejected. The evidence on the alleged lies was classified as a secret by the SIA.

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.[42] No information was received on whether this practice has changed in the course of 2020.

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 Act on legal profession 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 Act on legal profession 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 Act on legal profession, which means that they are writing and submitting appeals to the High Administrative Court, without being paid for their work.[43] This was also reported in 2018.[44] More recent information is not available but there are no indications that this has changed in practice.

The LITP also states 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.[45] 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.[46]

JRS reported that there should be a mechanism put in place to monitor the competence of persons which are on the list of free legal aid providers before administrative courts. In 2020, JRS received complaints from applicants of international protection pointing to a lack of communication with legal aid providers before initiating an administrative dispute which, according to JRS, frequently occurred. JRS also reported that they received complaints of a difficult communication during the proceedings and in the provision of free legal aid, which reflects on applicant’s unpreparedness at the hearings and accordingly affects the outcome of the dispute.[47]

 

 

 

[1]           With the exception of exclusion cases.

[2]           This refers both to the number of pending cases before the Ministry of Interior and Administrative Courts. UNHCR, Annual Statistical Snapshot – Asylum: Croatia 2020, available in English: https://bit.ly/32t7ySE.

[3]           Article 40 LITP.

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

[5]           Information provided by Are You Serious, 2 February 2021; and by Centre for Peace Studies, 22 January 2021.

[6]           Article 40 LITP.

[7]           Article 17(9) LITP.

[8]           Ibid.

[9]           Article 38(2) LITP.

[10]          Article 35(2) LITP.

[11]          Article 14(3) LITP.

[12]          Article 35(8) LITP.

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

[14]          Article 35(6) LITP.

[15]          Article 14(2) LITP.

[16]          Article 13 LITP.

[17]          Information provided by Jesuit Refugee Service, 12 January 2021.

[18]          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.

[19]          This refers only to the average processing time at the Administrative Court of Zagreb. Waiting times may vary at other Courts. Nevertheless, in 2020, 123 out of the 124 appeals were dealt by the Administrative Court of Zagreb.

[20]          Article 32(2) LITP.

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

[22]          Judges from Administrative Court in Osijek and from the High Administrative Court were invited, but did not participate in the seminar.

[23]          Article 33 Law on Administrative Disputes.

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

[25]          Administrative Court, decisions available in Croatian at: https://sudovi.hr/hr/uszg.

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

[27]          Article 51(3) LITP.

[28]          Article 59(3)-(5) LITP.

[29]          Ministry of Interior, Decision on the allocation of funds to the Croatian Law Center for project implementation, available in Croatian at: https://bit.ly/2JAI2BB.

[30]          Article 60(2) LITP.

[31]          Article 60(1) LITP.

[32]          Article 60(4) LITP.

[33]          Official Gazette 9/2020, Ministry of Interior, Public call, available in Croatian at: https://bit.ly/2JCZ5mk.

[34]          Ministry of Interior, List od free legal aid providers for Administrative courts (Zagreb,Rijeka, Split, Osijek), available in Croatian at:  https://bit.ly/3ao0nzs.

[35]          Information provided by an attorney-at-law, 31 December 2018.

[36]          Information provided by an attorney-at-law, 21 January 2020.

[37]          Article 60(3) LITP.

[38]          Information provided by an attorney-at-law, 16 January 2020.

[39]          Information provided by an attorney-at-law, 16 December 2019.

[40]          Information provided by an attorney-at-law, 21 January 2020.

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

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

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

[44]          Information provided by an attorney-at-law, 13 December, 2018.

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

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

[47]       Information provided by JRS, 12 January 2021.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation