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] Detention may be ordered for 4 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:
- To establish the facts and circumstances of the application which cannot be determined without limitation on freedom of movement, in particular where there is a risk of absconding;
- To establish and verify identity or nationality;
- To protect national security or public order; or
- To prevent abuse of procedure where, on the basis of objective criteria, which include the possibility of access to the procedure of approval of international protection, there is a well-founded suspicion that the intention to apply for international protection expressed during the procedure of forced return was aimed at preventing the procedure of removal.
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”. 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, however.
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 abscond;
- 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 2022, in the Reception Centre for Foreigners Ježevo, the freedom of movement was restricted for 32 applicants on the basis of Art. 54, para. 2, item 4 of LITP (prevention of abuse of procedure), and for 13 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). For all applicants in Transit Reception Centre Trilj and Transit Reception Centre Tovarnik the freedom of movement was restricted on the basis of Art. 54, para. 2, item 4. During 2022, in 4 cases freedom of movement was restricted by applying alternatives to detention on the basis of Art. 54, para. 5, item 1 (measure of banning movement outside the Reception Centre for Applicants for International Protection).[4]
In practice, however, detention is rarely used during the Dublin procedure. According to the Ministry of Interior, detention was used in 2 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.
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.[7] Prior to the LITP, the majority of detention decisions were uniform and based on the same grounds (therefore no individual assessment had been done), while under the LITP individual assessment should be done when ordering detention. However, in 2019 a few attorneys at law and one legal representative from an NGO have reported that decisions on the restriction of freedom of movement do not contain any reasoning behind the individual assessment. They simply state that the individual assessment has determined that detention is necessary because other measures cannot achieve the purpose of restricting freedom of movement.[8] Similar reports were made by two attorneys at law in 2021.[9]
According to the Ministry of Interior, 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 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.[10]
In practice applicants are usually detained where they request international protection after having been issued with a deportation order and situations where they have left or attempted to leave Croatia before the completion of the procedure for international protection.
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.[11]
In 2021, the Ombudsperson conducted an investigative proceeding in regard to preventing access to international protection in the reception centre for foreigners.[12]
In 2022, persons detained in the Reception Centre for Foreigners contacted directly by phone the Center for Peace Studies on several occasions, and declared not being able access to the asylum system.[13]
[1] Article 54(5) LITP.
[2] Article 54(2) LITP.
[3] Article 54(4) LITP.
[4] Croatian Law Centre, The Croatian Asylum System in 2022 – National Report. The report was prepared as part of the project “Legal Assistance and Capacity Building for Access to Territory and Asylum in Croatia“, with financial support of the UNHCR Croatia: available in English at: https://bit.ly/434T7RL.
[5] Information provided by the Ministry of Interior, 28 January 2019.
[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] Article 54(6) LITP.
[8] Information provided by attorneys at law on 3 December 2019, 6 December 2019, 16 December 2019 and 21 January 2020.
[9] Information provided by attorneys at law on 27 December 2021 and 29 December 2021.
[10] Information provided by the Ministry of Interior, 2 March 2017.
[11] Information provided by the Ministry of Interior, Border Directorate, 17 August 2018.
[12] Ombudsperson, Annual report 2021, available in Croatian at: https://bit.ly/37ypocG.
[13] Information provided by Centre for Peace Studies, 18 January 2023.