Author
The LITP lays down the grounds for restricting the freedom of movement of applicants and foreigners under transfer, including through detention in a Reception Centre for Foreigners.[1] 2023 amendments to the LITP introduced new grounds for applying restrictions on the movement of applicants, thus making the law stricter in this respect. Detention may be ordered for seven reasons,[2] if it is established by individual assessment that other measures (see section on Alternatives to Detention) would not achieve the purpose of restriction of freedom of movement:
- establishing the facts and circumstances on which the application for international protection is based, and that cannot be established without the restriction of movement, especially if it is assessed that there is a risk of absconding;
- establishing and verifying identity or nationality;
- protection of the national security or public order of the Republic of Croatia;
- in order to prevent the spread of infectious diseases in accordance with national regulations on necessary epidemiological measures;
- to prevent endangering the life of persons and property;
- due to multiple consecutive attempts to leave the Republic of Croatia during the procedure for international protection;
- due to the implementation of the procedure for forced removal, if based on objective circumstances, taking into account that the applicant already had the possibility of starting the procedure for international protection, it is justifiably assumed that by seeking international protection applicant wants to delay or make difficult to execute the decision on expulsion and/or return made in accordance with the provisions of the Law on foreigners.
In practice, however, detention is not used systematically.
Moreover, Article 54 (3) explicitly provides for the possibility to restrict freedom of movement or detain a foreigner for the purposes of transfer to another Member State under the Dublin Regulation only in cases where there is a “risk of absconding”. However, it should be noted that the LITP does not refer to a “significant risk of absconding” in accordance with Article 28(2) of the Dublin III Regulation.
The existence of a “risk of absconding” is determined on the basis of all the facts and circumstances of the concrete case, especially with regard to:[3]
- Previous attempts to arbitrarily leave Republic of Croatia;
- Refusal to submit to verification and establishment of identity;
- Concealing orprovidingfalse informationon the identityand/ornationality;
- Violation of the reception centre’s house rules;
- A Eurodac ‘hit; and
- Opposition to a Dublin transfer.
In 2023, 47 applicants for international protection were detained in the Reception Centre for Foreigners. For six applicants, freedom of movement was restricted on the basis of Art. 54, para. 2, item 2 of the Law on International and Temporary Protection (LITP) (establishing and verifying identity or nationality), 11 applicants were detained on the basis of Art. 54, para. 2, item 3 of the LITP (protection of the national security or public order of the Republic of Croatia), 14 on the basis of Art. 54, para. 2, item 4 of the LITP (prevention of the spread of infectious diseases in accordance with national regulations on necessary epidemiological measures) and 16 on the basis of Art. 54, para. 2, item 7 of the LITP (due to the implementation of the procedure for forced removal, if based on objective circumstances, taking into account that the applicant already had the possibility of starting the procedure for international protection, it is justifiably assumed that by seeking international protection applicant wants to delay or make difficult to execute the decision on expulsion and/or return made in accordance with the provisions of the Law on foreigners).[4]
In practice, however, detention is rarely used during the Dublin procedure. According to the Ministry of Interior, detention was used in two cases during the Dublin procedure in the course of 2018.[5] In 2021, this option was used in only one case, and the person was detained in the Reception Centre for Foreigners.[6] No public information on detention during the Dublin procedure is available for 2022.
According to the Ministry of Interior, in 2023, detention was not used during the Dublin procedure.[7]
The LITP specifies that detention in Reception Centre for Foreigners may be imposed if, by individual assessment, it is established that other measures would not achieve the purpose of restriction of freedom of movement.[8] However, one attorney at law reported that decisions on the restriction of freedom of movement do not contain a thorough and reasoned individual assessment, but mostly state the chronology of the case. Other, milder measures are not analysed in particular, but it is only stated that the restriction is appropriate considering the purpose that could not be achieved with other alternative measures.[9] Another attorney at law reported that decisions usually contain individual assessment, although rarely the explanation why alternative measures were not used.[10]
According to information provided by the Ministry of Interior in 2017, the individual assessment requested for the purpose of the restriction of freedom of movement is done based on personal circumstances such as belonging to vulnerable group (unaccompanied child, person with disability, health problems, family relations) as well as based on the behaviour of the applicant for international protection and his or her attitude towards the House Rules of the Reception Centre for Applicants for International Protection.[11]
In practice in the course of 2023 applicants were usually detained when they requested international protection after having been issued with a deportation order.
Where a person expresses the intention to apply for international protection from the detention centre, after having been detained on the basis of one of the immigration detention grounds as specified by the Law on foreigners in the Reception Centre for Foreigners, he or she must either be released and transferred to an open centre (Zagreb or Kutina) or must be served with a new restriction of freedom of movement decision on one of the grounds for detention as specified by LITP. According to information from the Border Police Directorate in 2018, if the intention is expressed in the Reception Centre for Foreigners in Ježevo, the intention is then received by the centre, which then informs by email the service dealing with applicants for international protection about the intention to seek international protection. The Service for Reception and accommodation of applicants for international protection organises the lodging of the application for international protection on the first following working day and, depending on the assessment, issues the decision on the restriction of freedom of movement, i.e., a detention order. If the decision on the restriction of freedom of movement is not issued, the applicant would be moved to the Reception Centre for Applicants for International Protection. Intentions to apply for international protection that are expressed in the Transit Reception Centres in Trilj and Tovarnik are received by local police stations based on their territorial jurisdiction.[12]
In 2023, persons detained in the Reception Centre for Foreigners contacted directly by phone the Centre for Peace Studies (CPS) on several occasions, and declared not being able to access the asylum system. CPS also reported that as of November 2022, they began to receive inquiries that indicated that a large number of Chechens, of which a large number were applicants for international protection in Croatia that were previously accommodated in the Reception Centre for Applicants for International Protection in Zagreb (Porin), were detained in the Reception Centre for Foreigners for unknown reasons and were at risk of deportation. According to the CPS, even though the LITP stipulates that restrictions on freedom of movement can be imposed for a maximum duration of 6 months, in some of the mentioned cases the maximum duration has been exceeded. In one case, the Administrative Court reviewed the classified data of the Security and Intelligence Agency and found that the file did not contain evidence nor any indications for the exclusion of asylum, and ordered the release of a person from detention.[13]
[1] Article 54(5) LITP.
[2] Article 54(2) LITP.
[3] Article 54(4) LITP.
[4] Information provided by the Ministry of Interior, 8 March 2024.
[5] Information provided by the Ministry of Interior, 28 January 2019. See also, Croatian Law Centre: “The Croatian Asylum System in 2021 – National Report”. The report was prepared as part of the project “Access to the territory and the asylum system in Croatia – Legal support and capacity building” with the financial support of UNHCR, available in Croatian at: https://bit.ly/3NgBDfc and in English at: https://bit.ly/3NBvVpC.
[6] Croatian Law Centre: “The Croatian Asylum System in 2021 – National Report”. The report was prepared as part of the project “Access to the territory and the asylum system in Croatia – Legal support and capacity building” with the financial support of UNHCR, available in Croatian at: https://bit.ly/3NgBDfc and in English at: https://bit.ly/3NBvVpC
[7] Information provided by the Ministry of Interior, 8 March 2024.
[8] Article 54(6) LITP.
[9] Information provided by attorney at law, 15 February 2024.
[10] Information provided by attorney at law, 30 January 2024.
[11] Information provided by the Ministry of Interior, 2 March 2017.
[12] Information provided by the Ministry of Interior, Border Directorate, 17 August 2018.
[13] Information provided by Centre for Peace Studies, 30 January 2024.