Author
The LITP defines safe third country as a country where the applicant is safe from persecution or the risk of suffering serious harm and where he or she enjoys the benefits of non-refoulement, and the possibility exists of access to an effective procedure of being granted protection, pursuant to the 1951 Convention.[1]
The fact whether the conditions have been met to apply the concept of safe third country is established separately for each application, by assessing whether a country meets the abovementioned conditions and whether a connection exists between that country and the applicant, on the basis of which it may reasonably be expected that he or she could request international protection there, taking into account all the facts and circumstances of his or her application.
The applicant will be informed timely of the application of the safe third country concept, so that he or she is able to challenge this in view of the specific characteristics of his or her personal circumstances.
The Ministry shall issue an applicant whose application is dismissed with a document in the language of the safe third country, informing the competent state bodies of that country that his or her application has not been examined in substance in the Republic of Croatia. If the safe third country refuses to accept the foreigner, a procedure would be conducted in Croatia i.e. decision shall be rendered on the substance of the application pursuant to the provisions of LITP.
The Ministry has an obligation to regularly inform the European Commission about the countries to which the concept of safe third country has been applied. No information is available for 2019 ,2020 and 2021.
The LITP also provides a definition of the concept of safe European third country.[2] It defines the latter as a country that has ratified and applies the provisions of the 1951 Refugee Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), including standards on effective remedy, and has established an effective procedure for the approval of protection pursuant to the 1951 Convention. It shall be determined whether the conditions have been met for the application of the concept of European safe third country for each application individually, assessing whether a country meets the above-mentioned conditions. The application of an applicant who entered Croatian territory unlawfully from a European safe third country shall be dismissed taking into account respect for the principle of non-refoulement, and the special circumstances of a humanitarian or political character, as well as the rules of international public law. The applicant must be informed in a timely manner of the application of the European safe third country concept, so that he/she is able to challenge this in view of his/her personal circumstances. If the Ministry of Interior dismisses the application of the European safe third country concept, it shall issue the applicant with a document in the language of the European safe third country, informing the state bodies of that country that the application has not been examined in substance in Croatia. In addition, the Ministry of Interior must regularly inform the European Commission about the countries to which the concept of European safe third country has been applied.
In March 2021, the Constitutional Court has issued a decision in a case concerning an Afghan family whose cases were dismissed by the Ministry of Interior on the basis of the safe third country concept.[3] More precisely, the Ministry of Interior concluded that Serbia, from which the family had entered Croatia, is a safe third country. In further proceedings before the Administrative Court in Osijek and the High Administrative Court their appeals were rejected. The applicants’ main complaint before the Constitutional Court was that they would be returned to Serbia from Croatia despite clear indications that they would not have access to an appropriate asylum procedure in Serbia that could protect them from expulsion or refoulement.
The Constitutional court upheld the constitutional complaints and annulled the judgments of the High Administrative Court and the judgments of the Administrative Court in Osijek. The case was thus referred back to the Administrative Court in Osijek. The Constitutional Court assessed the situation in Serbia to determine the status of the rights of applicants for international protection in that country but also to conclude whether the Afghan family would be in serious risk of deportation to a third country without due process in accordance with the requirements of Article 3 of the ECHR. The Court also pointed out that the Ministry of the Interior and administrative courts limited themselves to the normative framework and the number of persons granted international protection in their assessment of the situation in Serbia, without analysing the relevant reports and determining what is the actual treatment of persons returned from Croatia to Serbia and whether they face a risk of automatic refoulement. The Constitutional Court thus accepted the applicant’s allegations that during the procedure before the Ministry of Interior and administrative court proceedings it was not established with sufficient certainty that Serbia is a safe European third country and that Croatia had failed to fulfil its procedural obligations under Article 3 of ECHR.
[1] Article 45 LITP.
[2] Article 46 LITP.